LGBTQ POLICY JOURNAL LGBTQ POLICY JOURNAL at the

Volume VI, 2015–2016 Trans* Rights: The Time Is Now

Featured Articles Trans* Rights: The Time Is Now U.S. Department of Justice Agency Facilitates Improved Community-Police Relations

Reclaiming the Framework: Contextualizing Jurisprudence on in UN Mechanisms

The Forced Sterilization of Transgender and Gender Non-Conforming People in

A Paradigm Shift for Trans Funding: Reducing Disparities and Centering Human Rights Principles VOLUME VI, 2015–2016 VI, VOLUME

Our Mission To inspire thoughtful debate, challenge commonly held beliefs, and move the conversation forward on LGBTQ rights and equality.

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LGBTQ POLICY JOURNAL

AT THE HARVARD KENNEDY SCHOOL VOLUME VI Trans* Rights: The Time Is Now 2015 - 2016 WWW.HKSLGBTQ.COM

All views expressed in the LGBTQ Policy Journal at the Harvard Kennedy School are those of the authors or interviewees only and do not represent the views of , the John F. Kennedy School of Government at Harvard University, the staff of the LGBTQ Policy Journal at the Harvard Kennedy School, the advisory board, or any associates of the journal. © 2016 by the President and Fellows of Harvard College. All rights reserved. Except as otherwise specified, no article or portion herein is to be reproduced or adapted to other works without the expressed written consent of the editors of the LGBTQ Policy Journal at the Harvard Kennedy School. ISSN# 2160-2980 STAFF Editors-in-Chief Stephen Leonelli Alex Rothman Managing Editors Charles Fletcher Jonathan Lane Editors Danny Ballon Katie Blaisdell Wes Brown Alice Heath Shane Hebel Chaz Kelsh Priscilla Lee Scott Valentine Jenny Weissbourd ADVISORY BOARD Masen Davis Global Action for Trans* Equality Jeff Krehely Louis Lopez US Office of Special Counsel Timothy McCarthy John F. Kennedy School of Government at Harvard University Carl Sciortino AIDS Action Committee Winnie Stachelberg The Center for American Progress SPECIAL THANKS Richard Parker Faculty Advisor Martha Foley Publisher Kennedy School Student Government TABLE OF CONTENTS 2016 Special Edition – Trans* Rights: The Time Is Now 4 // Letter from the Editors-in-Chief

ARTICLES 7 // Department of Justice Agency Facilitates Improved Transgender Community-Police Relations Christopher “Kit” Chalberg and Kelly Collins-McMurry 22 // Reclaiming the Gender Framework: Contextualizing Jurispru- dence on Gender Identity in UN Human Rights Mechanisms Sheherezade Kara 33 // Human Rights Appropriation in the Development of Trans* Organizations’ Membership: The Case of Honduras Enrique Restoy, PhD 45 //  Reassignment Therapy and the Right to Health Ignatius Yordan Nugraha 53 // The Forced Sterilization of Transgender and Gender Non-Conforming People in Singapore Vanessa Ho, Sherry Sherqueshaa, and Darius Zheng 6 // “Like a Stray Dog on the Street”: Trans* Refugees Encounter Further Violence in the Cities Where They Flee Jennifer S. Rosenberg 89 // The Other Side of the Mirror: Eating Disorder Treatment and Gender Identity Evelyn Deshane 102 // A Paradigm Shift for Trans Funding: Reducing Disparities and Centering Human Rights Principles Masen Davis, Sarah Gunther, Dave Scamell, and Mauro Cabral

A NOTE ON TERMINOLOGY The LGBTQ Policy Journal at the Harvard Kennedy School intentionally chose to use “trans*” in our messaging and language for this edition, in order to emphasize the diversity of gender identities and expressions we hoped would be represented in submissions. The use of an asterisk began in recent years to convey that “trans” was not limited to a binary of transwomen and transmen, but additionally inclusive of gender-non-conforming, gender fluid, genderqueer, bigender, , transves- tite, and other non-cisgenders. We felt this was the best way to articulate rejection of a binary, even within the context of “trans” issues. At the same time, we recognize language diversity throughout the world, and we were not prescriptive with authors to use language they were uncomfortable with. We recognize that language is power, and also a site for contention. As language continues to evolve, so will the LGBTQ Policy Journal. LETTER FROM THE EDITORS-IN-CHIEF

Dear Readers,

In August 1966, trans women, queens, and sex workers rioted against po- lice violence and anti-transgender at the Compton Cafeteria in ’s Tenderloin District. Three years later, in Greenwich Village in City, the same forces of police brutality, legalized , and violent triggered days of protests, later known as the Stonewall Uprising. This was the beginning of the national movement for LGBTQ rights. Throughout the world, trans* and gender-non-conforming communities have been at the forefront of movements to end oppression based on gender and sexuality. And while progress has been slow in the fifty years since the Compton Cafeteria riots, recent times have brought hard-won victories. The Equal Employment Opportunity Commission ruled the prohibition of discrim- ination based on sex in Title VII of the 1964 Civil Rights Act includes trans* people.1 The Department of Health and Human Services overturned an out- dated policy and now allows Medicare to cover .2 La- verne Cox became the first transgender person to be featured on the cover of Time magazine and nominated for an Emmy.3 In Nepal, Malta, Australia, and , a category is permitted on official documents, such as passports.4 opened the first trans* health and support center in Asia.5 In South America, Michelle Suárez Bértora and Tamara Adrián became the first openly transgender women to be elected to national legislatures, in Uruguay and Venezuela, respectively.6 And yet, despite these gains, trans* people and trans* issues continue to be marginalized in virtually every society in the world. According to a study by the US National LGBT Task Force and National Center for Transgender Equality, one in four trans* people has been subjected to transphobic violence.7 Individuals with multiple marginalized identities—low-income transgender women of color, for example—face the highest rates of assault, both in the United States and abroad. In Brazil, there were forty-eight reported murders of transwomen in January 2016 alone.8 Transgender individuals are twice as likely to be unemployed and four times as likely to be living in extreme poverty in the United States. This trend holds in Europe as well, where the Fundamental Rights Agency found that trans* individuals are substantially less likely to be in paid employment compared to peers.9 Recent reports from Black and Pink and Human Rights Watch describe the abysmal situation for trans* incarcerated people and gender-non-conforming individuals in detention cen-

4 LGBTQ POLICY JOURNAL ters in America.10 States such as , Kuwait, Nigeria, and others enforce laws that criminalize “posing” as the “opposite” gender.11 This is the reality for trans* people: hard-won victories are juxtaposed with daunting challenges. The LGBTQ Policy Journal at the John F. Kennedy School of Government at Harvard University chose to focus on trans* policy this year, in an effort to further the discussion about the roles policymakers—at all levels of society and in all sectors—can play in impacting trans* lives for the better. This year’s journal features eight phenomenal articles covering a range of top- ics. Sheherezade Kara assesses human rights mechanisms at the United Na- tions, and the degree to which these mechanisms, and frameworks such as “gender-based violence,” adequately include and protect trans* rights. En- rique Restoy takes us to the local level, examining the ways that transwomen community-based organizations in Honduras are appropriating international human rights norms for and to defend their rights. Again looking to international human rights law, Ignatius Yordan Nugraha argues the right to health entitles transgender people to sex reassignment ther- apy. Vanessa Ho, Sherry Sherqueshaa, and Darius Zheng present the case of Singapore’s gender recognition law, and the way it constrains and enables dif- ferent segments of the trans* and gender-non-conforming communities. Considering the recent refugee crisis sweeping Europe, Jennifer S. Rosen- berg urges for policies that reflect the unique needs of trans* people, distinct from a broad LGBTI approach. The necessity of trans*-specific policy design is echoed in Evelyn Deshane’s article, which discusses the ways transgender men and non-binary people treated for eating disorders are impacted by gendered language and misunderstandings about trans* identities. Kit Chalberg and Kelly Collins-McMurry offer an analysis of strategies being tested at the Community Relations Service Agency in the US Depart- ment of Justice to improve the relationship between the trans* community and police. Finally, Masen Davis, Sarah Gunther, Dave Scamell, and Mauro Cabral de- scribe the contemporary landscape of funding for trans* organizing, and argue that a “paradigm shift” in philanthropy is necessary to sustain the movement. These articles present some of the challenges and opportunities that exist in crafting trans*-inclusive policies. At the same time, the issues explored here comprise only a subset of the trans* community’s policy needs. To name but a few areas for future research, more resources and energy must be directed at developing strategies to end the criminalization and incarceration of trans* individuals; to eradicate the epidemic of violence against trans* people; to pre- vent negative outcomes in schools settings—from to discriminatory and outdated school curriculum; to overcome challenges to inclusion and eq- uity in the workplace, housing, and social services; and more. Thank you for reading these articles and supporting research for one of the most marginalized communities in the world. In light of the victories for sexual

VOLUME VI 2015–2016 5 orientation and marriage equality in 2015, we believe that the LGBTQ commu- nity must educate ourselves and educate each other about the urgency facing the trans* community. The next fifty years must advance rights for trans* peo- ple with greater expediency. Trans* rights: the time is now.

In solidarity, Stephen Leonelli & Alex Rothman Editors-in-Chief Cambridge, MA April 2016

ENDNOTES 1. Beyer, Dana, and Jillian T. Weiss with Riki Wilchins, “New Title VII and EEOC Rulings Protect Transgender Employees,” , 2014. 2. Roni Caryn Rabin, “Medicare to Now Cover Sex-Change Surgery,” , 30 May 2014. 3. “Milestones in the American Transgender Movement,” The New York Times, 2015. 4. Kyle Knight, “Third-Gender Passports May Be the Future of Trans Travel,” The Advocate, 26 October 2015. 5. Joe Williams, “Asia’s First Trans Health and Support Centre Opens in Bangkok,” Pinknews, 30 November 2015. 6. Cleis Abeni, “Meet the First Transgender Legislator Elected to the Venezuelan National As- sembly,” The Advocate, 23 January 2016. 7. Grant, Jaime M., Lisa A. Mottet, Justin Tanis, and Jack Harrison with Jody L. Herman and , “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey” (Washington, DC: National Center for Transgender Equality and National and Task Force, 2011). 8. Julianna Britto Schwartz, “At Least 48 Transgender Women Killed in Brazil in January,” Feminis- ting, March 2016. 9. “Trans EU Employment Rights & Legal Gender Recognition,” , 18 February 2015. 10. “ of Concrete Closets: A Report on Black and Pink’s National LGBTQ Prisoner Survey,” Black and Pink, 21 October 2015; “US: Transgender Women Abused in Immigration Detention,” Human Rights Watch, 23 March 2016. 11. Ghoshal, Neela, and Kyle Knight, “Rights in Transition: Making Legal Recognition of Trans- gender People a Global Priority,” Human Rights Watch, 2011.

6 LGBTQ POLICY JOURNAL Department of Justice Agency Facilitates Improved Transgender Community-Police Relations

Christopher “Kit” Chalberg and Kelly Collins-McMurry

ABSTRACT

This article explores the nexus of social problems and interactions between LGBTQ populations, particularly members of the transgender community, and law enforce- ment. It highlights the proactive work of several US law enforcement agencies and their attempts to work with transgender communities. This article specifically ex- plores the unique work of the Community Relations Service, a branch of the US Department of Justice (DOJ), and the development and delivery of the agency’s groundbreaking “Law Enforcement and the Transgender Community” training program. This training has been instrumental in facilitating improved relations between the transgender community and police force, and is an important tool for building trust.

BRIEF HISTORY a local favorite. It was centrally located— adjacent to the hair salon, the corner The mistrust of law enforcement among bar and the bathhouse—and provided a lesbian, gay, bisexual, transgender, and well-lit and comfortable haven for trans (LGBTQ) communities is rooted women performing in clubs or walking in laws that have oppressed diverse com- the streets in San Francisco’s Tenderloin munities, questionable—if not brutal— neighborhood.”2 Fed up with “unruly” police tactics used to enforce these laws, transgender customers, cafeteria staff and violent clashes between police and began calling police. Police “arrested these communities. The 1966 Comp- drag queens, trans women and gay hus- ton’s Cafeteria Riot in the Tenderloin tlers who had been sitting for hours, District of San Francisco is remembered eating and gossiping and coming down as one of the first recorded transgender from their highs with the help of 60- riots in US history.1 Compton’s Cafete- cent cups of coffee.”3 Reportedly, an at- ria was a twenty-four-hour chain of eat- tempted arrest of a transgender eries, and one of the few places where resulted in hot coffee being thrown in transgender people could publicly con- an officer’s face, smashed windows, and gregate during evening hours, as they the burning of a nearby newsstand.4 were unwelcome in gay bars. As Nicole In response to this incident, the Pasulka writes, “The 24-hour eatery was transgender community began to picket

VOLUME VI 2015–2016 7 the cafeteria. When police harassment duct similar purges in their countries.”9 continued, a riot ensued, resulting in These historical accounts and pub- serious damage to the cafeteria and lic policies, as well as anti-LGBTQ at- surrounding neighborhood. The next titudes, have helped to create a deep night, demonstrators, including trans- mistrust among LGBTQ communities gender people, members of the lesbian, of law enforcement. This article will ex- gay, and, bisexual communities, and plore contemporary issues and how they others gathered to picket the cafeteria fuel mistrust between transgender com- again. When transgender people at- munities and law enforcement. I will tempted to enter the cafeteria they were also discuss the approaches of several refused, which resulted in more violence law enforcement agencies to work with and further damage to the cafeteria.5 transgender communities. Finally, this A second and more familiar inci- article will highlight the unique work of dent occurred in the summer of 1969. the DOJ’s community relations service Local police raided the , a in LGBTQ communities, including the well-known in ’s groundbreaking “Law Enforcement and west Greenwich Village neighborhood. the Transgender Community” training. Employees were arrested for selling li- quor without a license, patrons were CURRENT ISSUES searched, and a large crowd gathered during the raid. According to author Bias, Harassment, Suicide, Sarah Schulman in 1984, “drag queens Homelessness, and the and black drag queens fought the police Sex Trade and the raid resulted in arrests, prop- erty damage, and, ultimately, violence.” It’s been over fifty years since the Stone- Over the next several days, protests and wall Riots. Despite changes in socie- clashes with police ensued.6 tal perceptions, penal codes, and local The have long been laws, as well as increased visibility of touted as the beginning of the gay transgender people and a movement in America, and they social justice movement, transgender generated increased activism across individuals continue to face pervasive the country.7 The mistrust between discrimination. A 2011 National Center LGBTQ communities and law enforce- for Transgender Equality (NCTE) survey ment isn’t, however, isolated to locali- found that 26 percent of transgender ties. On 27 April 1953, President Dwight individuals reportedly lost a job due to D. Eisenhower issued Executive Order bias.10 The same survey found that “in- 10450, authorizing the Federal Bureau dividuals who expressed a transgender of Investigation (FBI) Director J. Edgar identity or gender non-conformity while Hoover to conduct personal investiga- in grades K-12 reported alarming rates tions of federal government employees of harassment (78 percent), physical as- for “sexual perversion.”8 The President sault (35 percent), and sexual violence (12 also “ordered all private contractors percent).”11 Unfortunately, these factors doing business with the government to have led to increased marginalization fire their gay employees. And urged our and alarmingly high rates of suicide and (United States) allies overseas to con- suicide attempts. The survey also found

8 LGBTQ POLICY JOURNAL that 41 percent of transgender individu- symptoms of complex social problems. als questioned have attempted suicide.12 For example, an unfortunate result of In comparison, a study conducted by both homelessness and sex work is in- the Centers for Disease Control and creased contact with police. One obvi- Prevention study found that 0.6 percent ous solution to the issue of increased of adults attempted suicide in 2015.13 police-transgender contact is to ad- Transgender populations are also at dress bias, employment, discrimination, increased risk of homelessness. Accord- and other deep-seated social problems. ing to the NCTE in 2015, However, law enforcement’s role is con- strained to enforcing laws and maintain- Homelessness is also a critical ing community safety. Faced with these issue for transgender people; one stark realities, law enforcement is often in five transgender individuals placed in adversarial positions and forced have experienced homelessness to make difficult choices—much to the at some point in their lives. Fam- frustration, anger, and disappointment ily rejection and discrimination of alleged law-breakers. Further, these and violence have contributed contacts with police may be perceived as to a large number of transgen- harassing, unjust, and even violent. der and other LGBQ-identified Negative perceptions of law enforce- youth who are homeless in the ment can be especially strong within United States—an estimated 20 transgender communities. The 2015 to 40 percent of the more than National Transgender Discrimination 1.6 million homeless youth.14 Survey (NTDS) found that 79.1 percent of transgender sex workers reported in- The combination of unemployment teractions with the police.17 In addition and homelessness (among other factors) to high rates of reported contact, the force some transgender individuals into interactions with police are often nega- the sex trade for survival. A recent re- tively perceived. The same survey found port found that nearly 11 percent of that 22 percent of transgender individ- transgender individuals surveyed had uals who had interacted with police re- participated in sex work.15 This number ported harassment.18 was significantly higher among trans- Transgender individuals also report gender persons of color, where nearly police violence. A 2012 survey by the Na- 40 percent of black and black multira- tional Coalition of Anti-Violence Pro- cial and 33.2 percent of Latino or His- grams (NCAVP) found that transgender panic individuals reported sex trade individuals are 3.32 times more likely to participation.16 experience police violence, as compared with non-transgender people.19 Addi- Police Contacts Related to Per- tionally, transgender women are almost vasive Issues Affecting Trans- three times more likely to experience gender Communities police violence, as compared with over- all reports of police violence.20 Reports The nature of police work is difficult of harassment and violence are further with officers often placed in lose-lose compounded by perceptions of police situations, where they must react to profiling or “walking while trans.”21

VOLUME VI 2015–2016 9 The facts or truths and right versus cally targeted under unconstitu- wrong in these reports are not known. tional sodomy or “crimes against Assigning who is right and who is wrong, nature” laws that can lead to along with the facts, doesn’t ultimately harsher penalties and sex of- matter. A police officer could have fol- fender registration.22 lowed protocol during an arrest, but if the individual perceived bias or unjust The social problems impacting trans- treatment this interaction further rein- gender communities and the resulting forces longstanding community narra- police contacts are a complex issue. At tives about bias, profiling, and mistrust. the community level, police depart- It is apparent that these perceptions of ments are often a bandage for a much harassment and alleged incidents of vi- deeper social wound, and because of olence and profiling negatively impact the nature of their work, they walk a relations between transgender com- fine line between perception and real- munities and law enforcement. The ity. At the national level, the DOJ works lack of trust can lead to decreased vic- to increase safety for LGBTQ communi- tim reports and reluctance to seek help ties through the Matthew Shepard and from police. For example, in 2015 Erin James Byrd, Jr. Hate Crimes Prevention Fitzgerald and others found that trans- Act. In particular, the Department’s gender individuals reported they were Community Relations Service (CRS), a somewhat uncomfortable (26.3 percent) little-known but historic and dynamic or very uncomfortable (31.8 percent) component, works to prevent hate seeking help from the police. crimes against LGBTQ communities Mistrust is reinforced when police through conflict resolution and train- departments are found to have engaged ing that aims for improved relations be- in biased practices that target trans- tween local law enforcement and these gender communities. According to the communities. NTDS: COMMUNITY RELATIONS SER- Investigations by the US Depart- VICE AND THE MATTHEW SHEP- ment of Justice of the New Or- ARD AND JAMES BYRD, JR. leans Police Department and the HATE CRIMES PREVENTION ACT Puerto Rico Police Department both found biased policing of On October 28, 2009, President Barack transgender communities—spe- Obama signed the Matthew Shepard cifically targeting transgender and James Byrd, Jr. Hate Crimes Preven- women of color as suspected tion Act (HCPA) into law. The law en- sex workers, as well as hostility ables the Justice Department to to transgender victims of vio- lence. Consent decrees in these prosecute crimes motivated by jurisdictions required changes race, color, religion, and national in policies toward transgender origin without having to show people. In some jurisdictions that the defendant was engaged such as Louisiana, transgender in a federally protected activity. sex workers have been specifi- The Shepard-Byrd Act also em-

10 LGBTQ POLICY JOURNAL powers the department to pros- Created by Title X of the 1964 Civil ecute crimes committed because Rights Act, the CRS was originally of a person’s , mandated to address community ten- gender identity, gender, or dis- sion associated with allegations of dis- ability as hate crimes. The law crimination on the basis of race, color, also marked the first time that and national origin. Under Title X, the the words, “lesbian, gay, bisexual CRS is required to conduct its activi- and transgender” appeared in ties without publicity and is prohibited the U.S. Code.23 from disclosing confidential informa- tion.26 The CRS does not investigate, In addition to expanding the depart- litigate, enforce, fact-find, assign blame, ment’s ability to prosecute hate crimes, or conduct its work through any coer- this historic act also expanded the - cive methods. Rather, the CRS provides date of the Justice Department’s CRS. impartial, confidential, and voluntary The HCPA allows the CRS, also known conflict resolution services without cost as “America’s Peacemakers,” to help to communities in all 50 states and the communities “prevent and respond to US territories. The CRS does impose alleged violent hate crimes on the basis solutions to conflicts; instead, it helps of actual or perceived race, color, na- people identify mutually agreeable res- tional origin, gender, gender identity, olutions. sexual orientation, religion, and dis- The CRS is called upon as the third ability.”24 party to facilitate problem solving among stakeholders. The mediator as- How the CRS Works sists in the exploration of issues and The CRS employs conflict resolution concerns, as well as develops agree- specialists who are trained to provide ments that promote communication assistance in four areas: mediation, fa- and assist with conflict resolution in the cilitation, consultation, and training. community. Stakeholders engage vol- Specialists apply these principles as they untarily, and any information disclosed work with leaders to resolve conflicts is held confidential by the CRS, unless stemming from issues covered under there is a threat of violence or a poten- HCPA, and in the prevention of and re- tially criminal act. sponse to hate crimes. Although much In 2009, the CRS’s jurisdiction was of the CRS’s work involves collaborating expanded to include the HCPA. The with law enforcement and community HCPA allows the CRS to offer services leaders following divisive incidents, to communities experiencing tension such as allegations of biased policing and violence related to actual or per- or in response to alleged hate crimes, ceived race, color, national origin, gen- the department also works with many der, gender identity, sexual orientation, other stakeholders.25 These may include religion, and disability. school district leaders, civil rights orga- Mediation nizations, nonprofits, American Indian tribes, community-based organizations, The CRS provides mediation services advocates, community organizers, and to help the parties achieve sustainable city, county, state, and federal officials. agreements to resolve conflicts. The

VOLUME VI 2015–2016 11 CRS conciliators do so by helping par- ment, advocacy groups, and businesses ties uncover underlying interests and in order to develop common under- develop options that resolve differences. standings and collaborative approaches Mediation is not used to determine who for reducing conflicts.30 is right or who is wrong; its goal is to The previous section provides an provide a framework that helps com- overview of the jurisdictional mandates, munities clarify misunderstandings, es- role, and services of the CRS in com- tablish mutual trust, and independently munity-based conflict. The subsequent prevent and resolve future conflicts.27 sections will focus on proactive law en- forcement practices and, most notably, Facilitation the CRS’s work to facilitate improved Facilitation services help communities relations between the transgender com- open lines of communication by iden- munity and police. tifying issues facing each community, learning from each group about each EFFORTS TO IMPROVE TRANS- problem, and identifying potential solu- GENDER COMMUNITY AND tions to the conflict. Dialogue promotes POLICE RELATIONS communication, which is a fundamen- tal building block for developing com- As previously discussed, the social prob- munity trust, reducing tension, and lems impacting transgender commu- establishing collaborative relationships. nities are complex and dynamic. Issues These conversations often include var- like bias, discrimination, homelessness, ious local agencies, institutions, and and suicide are not easily solved. How- community residents. Topics may in- ever, one part of this equation can be clude police and community relations, influenced by training, collaborative perceived hate crimes, protests, demon- relationships, and best practices—rela- strations, and other issues important to tions between police and the transgen- a community.28 der community. How can relationships between transgender communities Consultation and law enforcement be strengthened? The CRS conciliators also provide con- What are the best practices and poli- sulting services that include best prac- cies that law enforcement agencies can tices, referrals, model policies, and adopt to improve relations? There have community conflict resolution promis- been attempts to improve transgender ing approaches. For example, the CRS community-police relations in many might provide technical insight on the local jurisdictions. The following are structure and function needed in order promising examples of such attempts. to establish a human relations commis- Efforts at the Local Level sion or police liaison.29 Denver Sheriff Department Training Finally, the CRS provides a wide variety In 2012, the Denver Sheriff Department of trainings that bring represenatives to- collaborated with the GLBT Commu- gether from local government agencies, nity Center of Colorado and transgen- faith-based organizations, law enforce- der community leaders to develop one

12 LGBTQ POLICY JOURNAL of the nation’s most comprehensive jail officers for all members of the LGBT policies.31 This collaboration included community.”35 a complete review of policies and prac- The SFPD has also made significant tices related to transgender inmates. Of efforts to go beyond these policies. The particular importance was policy guid- department has attempted to make it- ance governing interaction with trans- self reflective of the community. There gender and gender-variant inmates, are a number of transgender police of- including definitions; implementation ficers in the department. Most notably, and procedural guidelines for intake, Officer Mikayla Connell became the initial classification, searches, and strip first transgender person to enter and searches; temporary and long-term graduate from the San Francisco Police housing and classification; transgender Academy in August 2014. review board purpose and policies; med- Los Angeles County Sheriff’s ical assessment and treatment; and the issuance of “blue cards.”32 Department During the classification process, In addition to adopting policies re- the intake officer will complete a blue garding strip searches of transgender card for the transgender/gender-variant individuals in custody and transgender inmate. A blue card contains the fol- contacts in reports and booking, the Los lowing information: search preference, Angeles County Sheriff’s Department preferred name and pronoun, criminal also authored an in-house guide titled descriptor number, booking number, “An LASD Guide: Transgender and Gen- booked name, inmate signature, and der Non-Conforming Employees.” This supervisor signature and date. The in- guide is believed to be the first compre- take search officer is also responsible for hensive policy in the United States by a notifying the medical staff that a trans- police department or law enforcement gender/gender-variant inmate has been agency that supports and protects trans- identified.33 gender police officers and employees.36 The manual “sets forth guidelines to San Francisco Police address the needs of transgender and Department gender non-conforming employees and The San Francisco Police Department clarifies how the law should be imple- (SFPD) has also created transgender mented in situations where questions policy guidelines, including prisoner may arise about how to protect the legal handling and transportation; arrest and rights or safety of all employees.” Ac- booking; name usage and forms of ad- cording to the publication, “in all cases, dress; prohibitions on discrimination, the goal is to ensure the safety and com- harassment, retaliation, and biased po- fort of transgender or gender non-con- licing; stops and searches; and an in- forming employees, while maximizing clusive LGBT Safe Zone Project.34 The the employee’s workplace integration safe zone project features laminated and minimizing stigmatization of the signage displayed at every police station employee.”37 in the City and County of San Francisco The publication also addresses defi- “to affirm the department’s position of nitions, privacy, official records, names providing equal and quality access to and pronouns, restroom accessibility,

VOLUME VI 2015–2016 13 locker room accessibility, dress codes, ising approaches at the local level. These transitioning on the job, sex-segregated law enforcement agencies have created job assignments, discrimination and policies and practices that seek to en- harassment, and additional resources. gage transgender communities and There are additional sections on the treat transgender people respectfully. unit of assignment (UOA) transition Efforts at the Federal Level plan guide. This includes planning for the UOA transition to begin, the day The CRS has positively impacted rela- the transition will be made known to tions between the LGBTQ community coworkers, and the first day of the em- and police by facilitating conflict reso- ployee’s official workplace transition. lution processes between the two. The CRS has also engaged with LGBTQ Washington, DC Metropolitan communities in the following ways: Police Department • Working with transgender com- The Washington, DC Metropolitan Po- munities in the aftermath of hate lice Department (MPD) has made ef- crimes; forts to engage transgender, lesbian, gay, • Visiting schools to address lin- and bisexual communities. The MPD gering issues in the aftermath of launched the Lesbian, Gay, Bisexual, and LGBTQ suicides; Transgender Liaison Unit (LGBTLU) in • Facilitating community dialogues 2000. The unit was the “first in the na- to explore issues impacting trans- tion to redefine community policing by gender communities; coupling community outreach with tra- • Leading hate crimes prevention ditional crime fighting in the often in- forums; and visible gay and lesbian communities.”38 • Providing self-marshaling train- The current commanding officer of the ing for demonstrations and unit, Sergeant Jessica Hawkins, is trans- marches. gender.39 The MPD also created a hate In many cases, building bridges be- crimes assessment task force to address tween transgender communities and hate crimes in the city.40 local law enforcement is essential to In 2015, the MPD issued updated improve community safety and reduce policy guidelines governing interac- the potential for future conflict and hate tions with transgender individuals, crimes. The following cases illustrate including definitions and regulations, the CRS’s work to build these bridges and a procedure for handling calls for in transgender communities impacted service and citizen complaints involving under the HCPA. transgender individuals. The guidelines Case Examples also addressed stop-and-frisk situations with transgender individuals, handling Jacksonville, Florida juvenile transgender arrestees, medical treatment of transgender arrestees, traf- In February 2014, a biased assault fic stops, and requests to update names against a transgender student at a local or associated with a person’s iden- university was reported. Community tification number.41 tension increased when LGBTQ stu- The above examples illustrate prom- dents alleged that the school’s admin-

14 LGBTQ POLICY JOURNAL istration and the local sheriff’s office the resulting brawl, and the transgen- failed to promptly investigate the inci- der woman was arrested.45 Due to the dent. In response, a local LGBTQ youth development of the LGBTQ outreach organization hosted a CRS-facilitated and liaison program, the CRS was able dialogue with representatives from the to quickly arrange and facilitate a series US Attorney’s Office for the Middle Dis- of dialogues in Minneapolis with local trict of Florida, the FBI, the Northeast police and transgender advocates. The Florida Hate Crimes Working Group, dialogues highlighted issues surround- the university’s LGBTQ resource cen- ing relations between the transgender ter, and campus police. These facilitated community and police. Additionally, the dialogues resulted in several targeted best practices for interacting with trans- outcomes, including training and guide- gender individuals and a comprehensive lines for campus police interactions list of transgender support agencies with LGBTQ community members.42 were provided to law enforcement.46

Minneapolis, Minnesota Detroit, Michigan

In January 2011, the CRS conducted In November 2013, the CRS was notified outreach to a Minnesota LGBTQ ad- by a transgender advocacy organization vocacy organization following the mur- of the murder of a transgender woman der of a transgender woman. The CRS whose body was found discarded in convened a series of dialogues with a trash receptacle. LGBTQ commu- LGBTQ advocates, police leaders, and nity members believed the victim was transgender community members. The murdered because of her gender iden- conversations resulted in an LGBTQ tity. They also expressed fear for their advocate-led police roll call and other personal safeties and of further hate LGBTQ cultural awareness training for crimes against community members. local police and sheriffs, corrections offi- In response to the community tension, cers, and county workers. The CRS also the CRS convened a series of meetings led the creation of an LGBTQ outreach and trainings with LGBTQ commu- and liaison program, and the campaign nity members, law enforcement, and for LGBTQ representation—specifically advocacy organizations. The meetings the transgender community—on the focused on hate crimes that targeted Chief’s Monthly Roundtable Advisory LGBTQ communities and improving Council.43 police relations with the community. In Several months later in Minneapolis, addition, the CRS assisted the parties in a transgender woman and her friends drafting a proclamation that established were walking by a bar when they were areas of consensus in order to strengthen allegedly harassed by patrons, who trust and understanding between law used transphobic, racist, and sexist enforcement and LGBTQ communi- slurs.44 When the transgender woman ties.47 The CRS’s services resulted in the was struck in the face with a bottle, a creation of a LGBTQ community liaison brawl ensued between the patrons and who serves as the department’s point of the group of friends. The alleged at- contact with LGBTQ communities and tacker sustained fatal injuries during acts as a communication conduit.48

VOLUME VI 2015–2016 15 San Juan, Puerto Rico dred transgender community leaders. Panelists provided information related In 2011 and 2012, following more than to federal and state hate and bias crimes eighteen LGBTQ murders, the CRS and best practices for prevention and worked in San Juan, Puerto Rico to ad- response. They also addressed audience dress rising tensions and support the questions. The panel afforded a unique building of local collaboration between opportunity for federal, state, and local criminal justice officials and LGBTQ government leaders to engage in an communities. More specifically, the active dialogue with transgender com- CRS worked closely with prosecutors, munity members and advocates from law enforcement officials, and mem- across the country.50 bers of the LGBTQ community to re- The CRS Develops National Law duce tensions and provide hate crimes prevention training. The CRS collabo- Enforcement and Transgender rated with the New York Police Depart- Community Training ment (NYPD) Hate Crimes Task Force and the Puerto Rico Police Department In addition to the cases highlighted (PRPD) to facilitate the NYPD-PRPD above, the CRS has positively impacted Hate Crimes Train-the-Trainer pro- LGBTQ and police relations by develop- gram for state-level hate crimes in San ing a groundbreaking national training Juan. In addition, the CRS convened di- program for law enforcement. alogues between community members and officials resulting in a structured Training Development Process and ongoing working partnership be- tween LGBTQ community leaders and As a result of the CRS’s aggressive out- law enforcement, and contributed to a reach and service to transgender com- DOJ-wide initiative to provide compre- munities, the agency received requests hensive support to Puerto Rico crimi- from LGBTQ advocacy groups to de- nal justice officials regarding LGBTQ velop cultural professionalism training victimization.49 for law enforcement. In response to these requests, the CRS led over sixty Denver, Colorado national transgender organizations and law enforcement leaders in a series of In May 2012, the CRS facilitated an meetings in the summer of 2013. Leaders HCPA panel discussion at the annual included law enforcement executives, Colorado Gold Rush—one of the na- transgender community policy experts, tion’s largest transgender conferences. advocates, LGBTQ police liaisons, an- The CRS invited officials from the Col- ti-violence program members, and orado US Attorney’s Office, the FBI, the transgender police officers, members of Denver Police Department, the Denver the Transgender Community of Police County District Attorney’s Office, the and Sheriffs International (TCOPS), and GLBT Community Center of Colorado, other nationally recognized experts. and the Colorado Gender Identity Cen- The goal of these meetings was to ter to participate in a panel discussion identify “cutting edge” content for what before an audience of nearly one hun- would develop into the Law Enforce-

16 LGBTQ POLICY JOURNAL ment and the Transgender Community low citizens, who share a com- cultural professionalism training. The mitment to public safety.51 CRS relied upon the expertise and ex- periences of the meeting attendees. The Since March 2014, the CRS has part- CRS’s role during these sessions was to nered with transgender community work with law enforcement and trans- organizations and law enforcement gender community experts to identify agencies across the nation and co-fa- critical training content. After months cilitated numerous training sessions of meetings, the CRS, law enforce- for law enforcement. More specifically, ment experts, and transgender experts the CRS has facilitated thirty-seven in- reached agreements on the training dividual trainings across the country, content. It included three topics for dis- including sessions in Michigan, Mon- cussion: relevant terminology, miscon- tana, Ohio, Mississippi, Texas, Utah, ceptions that impact the prevention of California, and Arkansas, among others. and response to hate crimes, and strat- The trainings have been conducted in egies and resources for effective collab- jurisdictions large and small, rural and oration. With this content, the CRS, urban. In total, nearly 1,400 law enforce- with the help of law enforcement and ment officers, including patrol officers, transgender community experts, was training officers, supervisors, and exec- able to develop the training package and utives have been trained. curriculum. The training was vetted, ap- proved, and authorized by the highest TRAINING MODEL levels of the DOJ. The groundbreaking training pro- The CRS does not act as an expert in gram was launched nationally in March areas like cultural awareness or cul- 2014, during a formal ceremony, to an tural professionalism. Rather, the agen- audience of more than 200 people, in- cy’s training model utilizes vetted and cluding top DOJ officials, transgender trained experts to deliver training con- community leaders, law enforcement tent. The CRS relies on experts to aid in officials, and media. Deputy Attorney the development of cutting-edge train- General James M. Cole (2014) said, ing materials. This is a model the CRS has successfully used since the early . . . [the] CRS’s new training helps 2000s following the development of ensure that we in law enforce- Arab, Muslim, and Sikh (AMS) cultural ment proactively protect the professionalism training content. For civil rights of all persons, includ- the transgender community training, ing those who suffer from acts of experts include recognized transgender hate violence or discrimination community leaders, as well as law en- on the basis of his or her actual forcement officers with a record of suc- or perceived gender identity. . . cessful engagement with transgender At its most basic level, the new communities. training will provide tools to en- During the development process, hance an officer’s ability to build the CRS recognized the need to develop partnerships with community a “co-trainer model.” This unique train- members and to work with fel- ing model brings together transgender

VOLUME VI 2015–2016 17 experts and law enforcement officers percent of hate crimes against as co-trainers. The approach allows LGBTQ people were against trainees to hear from local experts, and trans women, 90 percent of visually demonstrates that proactive whom were transgender women partnerships between the transgender of color.53 community and law enforcement are both possible and mutually beneficial. Likewise, there is little doubt that train- The training package includes Pow- ing alone will address these complex erPoint presentations utilizing role-play issues. However, the CRS’s approach scenarios. These scenarios allow train- to training development, the agency’s ees to model skills in front of their peers, unique training model, and ongoing which replicates how officers learn situ- work to increase trust between law ational responses in the police academy. enforcement and transgender com- The package also includes handouts and munities are successful examples of col- a scenario-based training DVD. These laboration. tools represent various approaches for The CRS will continue to facilitate delivering the training to multiple au- cultural professionalism training for diences and allow law enforcement, law enforcement and community lead- transgender community advocates, city ers, and will also continue to work with leaders, and others to effectively use the transgender community members, law materials. enforcement, schools, and other stake- holders to help prevent and respond LOOKING FORWARD to violent hate crimes and build and strengthen local partnerships. Equally, There is little doubt that more needs to the CRS will work with federal, state, be done to improve relations between and local officials, and others to improve the transgender community and police, hate crimes reporting and to reduce and in the prevention of and response abuse, discrimination, intolerance, and to hate crimes. Trust between transgen- injustice. In 2016, the CRS will launch der communities and law enforcement two other training products related to remains low.52 Murders of transgender the transgender community: a scenar- and gender-nonconforming people in- io-based, roll call training video that creased in 2015. According to the Na- illustrates some of the most common tional LGBTQ Taskforce: ways law enforcement encounters mem- bers of the transgender community, and . . . twenty-three trans women a laminated pocket card for law enforce- and gender nonconforming ment with tips for successful interaction people [were] murdered in 2015. with the transgender community. Twelve other trans women of Communities need to be heard. color were reported murdered in This is especially true for communi- 2014. In 2013, where there were ties whose voices have been silenced or also twelve reported murders marginalized, communities subjected to of trans women of color, the violence or bias, and communities that National Coalition of Anti-Vio- live in fear of police. The CRS gives voice lence programs reported that 72 to communities large and small, which

18 LGBTQ POLICY JOURNAL is fundamental in addressing many of Kelly Collins-McMurry works for the these issues, and is the pathway toward Department of Justice’s Community Rela- community empowerment and trust. tions Service (CRS) in Washington, DC as Over the last fifty years, the CRS has a program analyst, focusing on the CRS’s done this through mediation, facilita- work under the Matthew Shepard and tion, and training. Most notably, the de- James Byrd, Jr. Hate Crimes Prevention velopment and delivery of the national Act. Collins-McMurry is a community re- Law Enforcement and the Transgender lations and communications professional Community training program filled a with dual backgrounds in law enforcement critical need and was an important step and journalism. She served as an openly toward healing transgender community lesbian police officer for the Metropolitan and police relations. The CRS’s work, Police Department in Washington, DC, along with the efforts of local police de- where she specialized in community re- partments and advocates, offers hope lations; gay, lesbian, bisexual, and trans- there will never be another Compton’s gender liaising; emergency and disaster Cafeteria Riot, and that transgender response assistance; media relations; and people will be better positioned to ful- civil disturbance and crowd control. fill their individual and collective prom- More recently, Collins-McMurry, along ise in a nation built on the premise of with her wife, Marcia, served as an inter- equality and justice for all. national civilian police officer with the UN’s peacekeeping missions in Haiti and Christopher “Kit” Chalberg works for Kosovo, where she was awarded medals for the Community Relations Service (CRS) of her service. Before becoming a police offi- the US Department of Justice. He is cur- cer, Collins-McMurry was a professional rently detailed as the agency’s program writer and editor for a number of special- development and training coordinator, ized publications, including Trial maga- where he leads the development of na- zine, Regardie’s magazine, and The Legal tional programs and training initiatives. Times newspaper. Prior to this assignment, Chalberg worked Collins-McMurry was awarded her as a conciliation specialist, providing bachelor of science degree in journalism, conflict resolution services to communi- summa cum laude, from Ohio University. ties experiencing conflict due to issues of She has received numerous letters of appre- race, color, and national origin, and in ciation for community policing, gay and response to bias and hate crimes based on lesbian liaising, and crime reduction. race, color, national origin, sexual orien- Collins-McMurry enjoys the beach and tation, gender identity, religion, disability, tropical travel, running, and walking her and gender. Prior to employment with the beloved terrier and pug. A native CRS, he worked as a mental health coun- Midwesterner by way of Ohio and Illinois, selor and earned a graduate degree in con- she is now a diehard Baltimore Orioles fa- flict resolution and an advanced certificate natic, although she also quietly cheers for in alternative dispute resolution from the the Chicago Cubs. University of Denver. Chalberg lives in Denver, Colorado, with his wife Amberly.

VOLUME VI 2015–2016 19 DISCLAIMER 16. Ibid. 17. Ibid. 18. Grant, Jaime, et al., “Injustice at Every The views expressed in this article are Turn.” those of the individual authors. These 19. Chestnut, Shelby, Ejeris Dixon, and views do not necessarily represent the Chai Jindasurat, “Lesbian, Gay, Bisexual views of the Community Relations Ser- Transgender, Queer and HIV-Affected Hate vice, the United States Department of Violence in 2012,” National Coalition of Justice, or the US government. Anti-Violence Programs, 3 June 2013. 20. Ibid. ENDNOTES 21. Grant, Jaime, et al., “Injustice at Every Turn.” 1. Autumn Sandeen, “The Compton’s Cafe- 22. Fitzgerald, Erin, et al., “Meaningful teria Riot,” Gay and Lesbian Times, October Work.” 2010. 23. Jocelyn Samuels, “Commemorating the 2. Nicole Pasulka, “Ladies in The Streets: Fourth Anniversary of the Shepard-Byrd Before Stonewall, Transgender Uprising Prevention Act,” White House, Changed Lives,” NPR, 5 May 2015. 28 October 2013. 3. Ibid. 24. The Matthew Shepard and James Byrd, 4. Daniel Villarreal, “Before Stonewall, Jr. Hate Crimes Prevention Act of 2009, 18 There Was The Cooper’s Donuts and U.S.C. § 249 (2009). Compton’s Cafeteria Riots,” Queerty, 7 25. Lum, Grande, Francis Amoroso, and October 2011. Rosa Melende, “The U.S. Department of 5. Sandeen, “The Compton’s Cafeteria Justice Community Relations Service: As- Riot.” sisting Communities in Resolving Conflicts 6. Ken Harlin, “The Stonewall Riot and Its and Restoring Peace,” The Police Chief Vol. Aftermath.” Columbia University Starr East 80 (2013): 48–51. Asian Library, 1994. 26. Civil Rights Act of 1964, 42 U.S.C 2000g 7. Martin Duberman, Stonewall (New York: (1964). Penguin Books, 1993). 27. Lum, Amoroso, and Melende, “The U.S. 8. Charles Francis, “Perved: Eisenhower Department of Justice Community Rela- Anti-Gay Executive Order Turns 60,” The tions Service.” Huffington Post, 2 May 2013. 28. Ibid. 9. Josh Howard, “April 27, 1953: For LGBT 29. Ibid. Americans, a Day That Lives in Infamy,” 30. Ibid. The Huffington Post,27 April 2012. 31. Jennifer Brown, “Denver Jail Transgen- 10. Grant, Jaime, et al., “Injustice at Every der Policy a National Model,” The Denver Turn: A Report of the National Transgen- Post, 28 June 2015. der Discrimination Survey,” National Center 32. Denver Sheriff Department, Order for Transgender Equality and National Gay 4005.1, 6 June 2012. and Lesbian Task Force, 2011. 33. Ibid. 11. Ibid. 34. San Francisco Police Department 12. Ibid. (SFPD), General Order 5.18, 2008; SFPD, 13. “Suicide: Facts at a Glance,” Centers for Bulletin A-09-195 “Standards for Interac- Disease Control, 2015. tion with the Transgender Communities: 14. Fitzgerald, Erin, et al., “Meaningful Stops and Searches,” 2009; SFPD, Bulletin, Work: Transgender Experiences in the Sex A-09-218. “Standards for Interactions with Trade,” National Center for Transgender Transgender Communities: Arrest and Equality and , Decem- Booking,” 2009; SFPD, General Order 5.17, ber 2015. 2011; SFPD, Bulletin A-09-195; SFPD, Bul- 15. Ibid.

20 LGBTQ POLICY JOURNAL letin C-13-021, “LGBT Safety Zone Project,” 2013. 35. SFPD, Bulletin C-13-021. 36. Los Angeles County Sheriff’s Office, Custody Division Manual 5-08/10.00, “Searches,” 2014. 37. Ibid. 38. “D.C.’s Gay and Lesbian Liaison Unit: In- novator’s Focus,” Harvard University, 2006. 39. Lou Chibbaro, “ Named Head of D.C. Gay Police Unit.,” The Wash- ington Blade, 10 March 2015. 40. “Report of the Hate Crimes Prevention Task Force,” Hate Crimes Assessment Task Force, 2014. 41. Washington, DC Metropolitan Po- lice Department, General Order 501.02, “Handling Interactions with Transgender Individuals,” 2015. 42. Community Relations Service, “Fiscal Year 2014 Annual Report,” DOJ, 2015. 43. Community Relations Service, “Fiscal Year 2011 Annual Report,” DOJ, 2012. 44. Pasulka, “Ladies in The Streets.” 45. Ibid. 46. Community Relations Service, “Fiscal Year 2011 Annual Report.” 47. Community Relations Service, “Fiscal Year 2014 Annual Report.” 48. Crystal, Proxmire, “Detroit Police Announce LGBT Liaison.” Pride Source, 6 March 2014. 49. Community Relations Service, “Fiscal Year 2013 Annual Report,” DOJ, 2014. 50. Community Relations Service, “Fiscal Year 2012 Annual Report,” DOJ, 2013. 51. James M. Cole, “Deputy Attorney Gen- eral James M. Cole Delivers Remarks at the Community Relations Service Transgender Law Enforcement Training Launch,” DOJ, 27 March 2014. 52. Fitzgerald, Erin, et al., “Meaningful Work.” 53. “Stop Trans Murders,” LGBTQ National Taskforce, 11 April 2016.

VOLUME VI 2015–2016 21 Reclaiming the Gender Framework: Contextualizing Jurisprudence on Gender Identity in UN Human Rights Mechanisms

By Sheherezade Kara

ABSTRACT While the human rights mechanisms of the United Nations (UN) are increasingly addressing the global and systemic infringements on the rights of trans* persons, there remains some disjuncture in how the various bodies place violations against trans* persons in a broader critical framework of gender-based violence and dis- crimination. In their attention to infringements of the rights of trans* persons, the UN mechanisms have yet to adequately provide a critique of norms, risking leaving behind those who reject the binary altogether, and failing to truly address the root causes of gender-based violence and discrimination.

“Antidiscrimination law is founded upon reporting at the international level), the idea that sex, conceived as biological there remains some disjuncture in difference, is prior to, less normative than, how the various bodies place violations and more real than gender. Yet, in every against trans* persons in a broader criti- way that matters, sex bears an epiphenom- cal framework of gender-based violence enal relationship to gender; that is, under and discrimination.2 close examination, almost every claim This article will argue that, in their with regard to or sex dis- attention to infringements of the rights crimination can be shown to be grounded of trans* persons, the UN mechanisms in normative gender rules and roles.” have yet to adequately provide a critique —Katherine Franke (1995)1 of gender binary norms. In this, they risk leaving behind those who reject the INTRODUCTION binary altogether, and fail to truly ad- dress the root cause of violations against While both the expert and political women, trans*, genderqueer, and gender human rights mechanisms of the UN non-conforming people, as well as inter- are increasingly addressing the global sex, gay, lesbian, and queer people, and and systemic infringements of the others who transgress gender norms.3 rights of trans* persons (in response to heightened civil society organising and

22 LGBTQ POLICY JOURNAL NORMATIVE FRAMEWORK address human rights concerns affecting trans* people worldwide, through refer- The Universal Declaration of Human ences in general comments (authorita- Rights (UDHR) was adopted by the UN tive guides for states on interpretation General Assembly in 1948, and defines of the conventions) and concluding ob- human rights and fundamental free- servations (treaty body summation of doms as referenced in the UN charter.4 state reviews with recommendations). It serves as a basis for international A number of the treaty bodies have human rights law, covenants, and trea- explicitly stated in general comments ties, and provides the cornerstone of ad- that gender identity is a ground for vocacy for the rights of minorities and protection from discrimination and marginalized groups. violence under the conventions. The The first article of the declaration Committee Against Torture (CAT), states, “All human beings are born free the Committee on Economic, Social, and equal in dignity and rights.”5 Ar- and Cultural Rights (CESCR), and the ticle 2 further states that “Everyone is Committee on the Elimination of Dis- entitled to all the rights and freedoms crimination Against Women (CEDAW) set forth in this Declaration, without have all affirmed that gender identity distinction of any kind, such as race, co- is covered in state obligations under lour, sex, language, religion, political or non-discrimination clauses of the rel- other opinion, national or social origin, evant conventions.8 Furthermore, property, birth or other status.”6 CESCR used the The use of “all human beings”, and as a source of guidance on the definition “everyone” in the text of the UDHR of gender identity, providing additional reflects the intention of the drafters international human rights legitimacy to address all forms of discrimination both to trans* identities and to the Yo- in human rights law, and the phrase gyakarta Principles themselves.9 The “or other status” indicates the grounds principles affirm binding international listed in the text were intended to be legal standards on sexual orientation non-exhaustive.7 International juris- and gender identity with which all states prudence has since enunciated gender must comply.10 identity as a ground for protection from UN general comments have also discrimination in the application of in- identified specific vulnerabilities of ternational human rights law, with calls trans* persons to rights violations. For for an end to gender-based discrimina- example, in its General Comment 13 tion and gender stereotyping in the ful- document on the right of the child to fillment of state obligations under core freedom from all forms of violence, the international rights treaties. Committee on the Rights of the Child The human rights treaty bodies, (CRC) noted, “groups of children, which comprised of independent experts, are likely to be exposed to violence in- monitor state party implementation of clude those who are . . . transgender or the relevant core international human transsexual.”11 CEDAW General Com- rights treaty to which they are assigned. ment 33 on women’s access to justice Since 2008, treaty bodies have increas- highlights grounds for intersectional or ingly recognized the need to explicitly compounded discrimination that make

VOLUME VI 2015–2016 23 it more difficult for women to gain -ac and the fact that most extreme forms of cess to justice, including being trans- violence are the least political for rights gender women.12 It further notes that mechanisms to take up.17 transgender women are disproportion- These early reports show that while ately criminalized due to their situation the mandate holders have sought to or status.13 bring attention to specific cases and In UN concluding observations, patterns of abuse, they have also had treaty bodies have affirmed the right to to evolve their use of appropriate lan- legally change gender without require- guage and terminology. For example, ments of psychological assessment, sur- early reports made both mistakes of gery, or sterilization.14 In addition, CAT, mis-gendering people and identifying CESCR, and the Human Rights Com- the cause of the abuse as based on per- mittee have dealt more broadly with ceived sexual orientation rather than on issues affecting LGBT people and on in- gender identity, expression, or non-con- fringements of rights based on both sex- formity.18 Early reports also referred ual orientation and gender identity.15 to “transvestites,” “,” and Such issues encompass discrimination “transgendered” persons, reflecting lan- (including discrimination in detention, guage used at the time.19 In recent years, social security, employment, housing, mandate holders almost exclusively education, and health care, and discrim- refer to “transgender” persons and vio- ination against sex workers and people lations on grounds of “gender identity,” living with HIV/AIDS), harassment, in- following increased use of such termi- citement to violence, hate speech, hate nology by civil society. While mandates crimes, ill-treatment, violence, and sex- have also occasionally been inclusive ual abuse in both public and private set- of non-Western (and non-Anglophone) tings and by law enforcement officials, identities, for example by addressing including with impunity, access to an- violations against meti and travesti, dis- tiretroviral and other health services, course in the mechanisms has predom- and the use of the Yogyakarta Principles inantly centered on an LGBT (and more as a guide to policy development.16 recently LGBTI) or sexual orientation and gender identity framework when EVOLVING ATTENTION referring to identity groups or grounds for protection, respectively.20 Between 1997 and 2004, UN Special In the near twenty years Special Procedures (human rights experts man- Procedures has brought attention to dated by political/intergovernmental infringements on the rights of trans* bodies to address specific thematic or persons, the mandate has focused on country issues of concern) focused on torture and cruel and inhuman treat- killings and torture as the only man- ment, and has consistently shown lead- dates—indeed, the only UN rights ership both in responding to violations mechanisms—to address violations of and in providing conceptual and critical the rights of trans* persons, with these analyses of the patterns of abuses and notably being the most egregious of state laws and policies. The first time rights violations. This is illustrative of the substance of the issues were ad- both the nature of abuses committed dressed with any nuance by one of the

24 LGBTQ POLICY JOURNAL UN expert mechanisms was in the an- During the years following, a broader nual report of the Special Rapporteur on range of Special Procedures mandate torture to the Commission on Human holders (including those working on Rights (CHR) in 2001.21 health, violence against women, rac- In a chapter titled “Torture and Dis- ism, freedom of expression, and human crimination Against Sexual Minorities,” rights defenders) started to issue the- the report refers to a pattern of reported matic reports, urgent appeals, and torture and ill treatment of persons, re- letters of allegation to governments lating to “their real or perceived sexual regarding cases of violence and dis- orientation or gender identity.”22 Al- crimination based on gender identity. though (mis)identifying trans* persons These dealt with family, community, as sexual minorities, the report notes and police sexual abuse, violence and how discrimination based on gender killings (including against human rights identity “may contribute to the process defenders), obstacles to legal gender of the dehumanization of the victim, recognition, freedom of association and which is often a necessary condition for assembly, discrimination in the work- torture and ill-treatment to take place,” place, arbitrary arrest, detention and including by police and law enforce- conditions of detention, and the crim- ment. The report further states that si- inalization of sex work. They stressed lencing through shame, or threat by law the importance of informed consent in enforcement officials, in order to pub- health care settings, and of encryption licly disclose the victim’s sex assigned at and online anonymity.24 Such reporting birth, may keep a considerable number has highlighted the broad and systemic of victims from reporting abuses. nature of infringements of the rights of The subsequent mandate holder on trans* persons. torture drew attention to these findings In a particularly noteworthy 2013 in a report to the CHR in 2003, and fur- report to the Human Rights Council, ther noted (in the context of violations focusing on abuses in health care set- based on gender identity) that because tings, the special rapporteur on torture some persons are “perceived as trans- highlighted forced sterilization and gressing gender barriers or challenging surgery as prerequisites for legal gender predominant conceptions of gender recognition as unlawful. The rappor- roles, seems to contribute to their vul- teur noted that “not only does enforced nerability to torture as a way to ‘punish’ surgery result in permanent sterility their unaccepted behaviour.”23 It is par- and irreversible changes to the body, ticularly noteworthy this observation and interfere in family and reproduc- was made in 2003, and with specific tive life, it also amounts to a severe and reference to violations based on gen- irreversible intrusion into a person’s der identity. While the rapporteur did physical integrity.”25 not draw the conclusion that societal This report has supported advocacy subscriptions to gender norms were the against the medicalization of trans* problem, he acknowledged state and identities by delinking “the perfor- community-based policing of gender as mative character of gender with the problematic from a human rights per- physical ‘fact’ of sex,” reinforcing the spective. enlightened understanding that gender

VOLUME VI 2015–2016 25 and sex are indeed quite separate.26 Such experienced by transgender women, in medicalization and pathologisation of particular the trans* identities have repeatedly been they should undergo to get their birth criticized by treaty bodies in their gen- certificates changed and the non-re- eral recommendations to state parties. imbursement by health insurance for surgical placement of their breast im- GENDER RECOGNITION plants.”29 CEDAW made recommenda- tions thereon. “The most critical of these moments was CESCR, in 2011, noted with concern the intake interview at the gender dyspho- “that transsexual and inter-sexed per- ria clinic, when the doctors, who were all sons are often assimilated to persons males, decided whether the person was with mental illness and that the State eligible for gender reassignment surgery.” party’s policies, legislative or otherwise, —Sandy Stone (1987)27 have led to discrimination against these In addition to general recommenda- persons, as well as to violations of their tions, concluding observations are a sexual and reproductive health rights.”30 tool for treaty-monitoring bodies to il- The committee urged the state party to lustrate the breadths of state obligations step up measures, legislative or other- under the treaties, following a process wise, on the identity and health of trans- of periodic state reporting, submission sexual and persons with a view of information by civil society, consid- to ensure they are no longer discrim- eration of lists of issues, and interactive inated against and that their personal sessions with the states under review. integrity and sexual and reproductive While many references to the rights health rights are respected.31 of trans persons or protection on the The Human Rights Committee ad- basis of gender identity are included in dressed infringements on rights to concluding observations in so far as they gender recognition in some detail in can fall under the LGBT umbrella, some its review of Ukraine in 2013, namely of the treaty bodies have paid specific noting that “transgender persons are attention to issues of concern for trans required to undergo compulsory con- persons. Such attention has almost en- finement in a psychiatric institution for tirely been limited to infringements on a period up to forty-five days and [un- human rights in accessing legal gender dergo] mandatory corrective surgery” recognition, including requirements of as prerequisites to a legal change of psychiatric assessments, sterilization, gender.32 The committee stressed that and surgery. Ukraine should amend laws and regu- For example, in 2008 the Human lations to ensure that (1) the compul- Rights Committee recommended that sory confinement of persons requiring Ireland ensure the right of transgender a change (correction) of sex in a psy- persons to a change of gender by per- chiatric institution for up to forty-five mitting the issuance of new birth certif- days is replaced by a less invasive mea- icates.28 sure; (2) any medical treatment should Furthermore, in a 2010 review of be provided in the best interests of the the Netherlands, CEDAW expressed individual with their consent, should “concern at specific health problems be limited to those medical procedures

26 LGBTQ POLICY JOURNAL that are strictly necessary, and should GENDER-BASED be adapted to their own wishes, specific DISCRIMINATION medical needs, and situation; and (3) any abusive or disproportionate require- On the other hand, in the political ments for legal recognition of a gender bodies a number of states opposing reassignment are repealed.33 advancements on issues of gender and In 2014, CEDAW recommended that sexuality have organized to actively and Belgium lighten the procedural burden strategically oppose any reference to the for transgender women to obtain legal word “gender,” or the framing of “gen- gender recognition by making the pro- der-based violence” in negotiated texts, cedure more expeditious, transparent, insisting the UN must refer to “sex,” and accessible, and that it amend cur- (meaning male and only) and rent laws and practices to abolish the re- “violence against women and girls.”37 quirements for a psychiatric assessment, Informal negotiations on human rights sterilization, and surgery for transgen- resolutions reveal that member states der women who wish to obtain legal most invested in preserving restrictive recognition of their gender.34 gender roles and norms have shown Thus, international jurisprudence themselves to be acutely aware of the rightly recognizes that requirements of implications of international human physical and psychological conformity rights system exploring rights violations to medically prescribed norms of “male- with a critical gender lens. ness” and “femaleness” for a legal change The push against gender in the polit- of gender infringes on rights. It further ical bodies, as well as against sexual ori- recognizes gender stereotyping as an entation and gender identity (which are obstacle to equal fulfillment of rights, overly politicized and thus effectively and a root cause of violence against siloed from other relevant thematic ini- those who transgress gender norms tiatives), means that expert mechanisms through —both by the have a responsibility to ensure nterna- state through laws and policies and by tional human rights law is being applied the community through violence and equally to all persons, including those discrimination.35 However, the expert who don’t conform to a gender binary.38 mechanisms fail to question the gender binary itself, meaning they are failing MOVING BEYOND THE to address the root cause of violations BINARY against women, trans*, genderqueer, and gender non-conforming people, as The results of a National Transgender well as intersex, gay, lesbian, and queer Discrimination Survey carried out in the people. As noted by Giuseppe Campu- US in 2008, revealed that genderqueer zano in Reclaiming Travesti Histories, individuals suffer discrimination and “modern legal battles around transgen- violence at similar, and sometimes even der identity recognition are subject to higher rates, than transgender-identi- and reproduce gender normativity.”36 fied individuals.39 As compared to trans- gender-identified survey respondents, genderqueer people were more likely to: • Suffer physical assaults (32 per-

VOLUME VI 2015–2016 27 cent, as compared to 25 percent); dations on a legal change of gender • Survive sexual assault in primary- rather than just recognition of gender to secondary-level education (16 (whether within or without the binary), percent, as compared to 11 per- the mechanisms do not relieve the cent); pressure on trans*, genderqueer, and • Face police harassment (31 per- other gender non-conforming people cent, as compared to 21 percent); to “pass” as male or female. The mecha- • Be unemployed (76 percent, as nisms thereby fail to adequately protect compared to 56 percent); and all people who are subjected to gen- • Avoid health care treatment for der-based rights violations, including fear of discrimination (36 percent, women and lesbian, gay, bisexual and as compared to 27 percent).40 intersex people.43 As Viviane K. Namaste A Williams Institute report specifically notes in Invisible Lives: The Erasure of analyzing the survey data to determine Transsexual and Transgendered People, the experiences of those respondents “The necessity of is directly re- who chose to write in their own gender, lated to the cultural coding of gender concludes that by “examining just a few . . . Although nonpassing transsexuals of the key domains of the study, such would seem to be foremost among those as education, health care, employment, at risk [of violence], other individuals and police, it seems clear that gender experience similar harassment, such as variant respondents, including those non-transsexual people with seemingly who see their gender as hybrid, fluid, transsexual characteristics.”44 and/or rejecting of the male-female bi- nary, are suffering significant impacts of LEADERSHIP OF THE OFFICE OF anti-transgender bias and in some cases THE HIGH COMMISSIONER FOR are at higher risk for discrimination and HUMAN RIGHTS (OHCHR) violence than their transgender coun- terparts in the study.”41 It is worth noting that the two Human Such a study highlights the need for Rights Council-mandated OHCHR the UN human rights mechanisms to reports on sexual orientation and gen- critique state and community policing der identity human rights issues have of the gender binary as a root cause of begun to provide this analysis. The re- violence and discrimination, beyond ports have noted that those who trans- acknowledgement there must be space gress or defy gender norms, or who for diversity in definitions of “man” and fail to conform to socially constructed “woman.” This was suggested in a 2013 gender expectations are disproportion- report of the special rapporteur on vio- ately subject to violence, which aims lence against women to the general as- to punish such transgressions.45 The sembly, which noted that “those whose later report recognizes that homopho- does not fall into bic and transphobic attacks “consti- exact categories of female and male, are tute a form of gender-based violence, vulnerable to targeted abuse” in deten- driven by a desire to punish individuals tion.42 whose appearance or behavior appears Without dismantling the binary, to challenge gender stereotypes.”46 and while focusing policy recommen- The second OHCHR report also puts

28 LGBTQ POLICY JOURNAL “gender normalizing” surgeries on in- those who challenge or transgress pre- tersex children in this context. As the dominant conceptions of gender roles report notes, “Many intersex children, and norms. Through years of report- born with atypical sex characteristics, ing, these mechanisms have further are subjected to medically unnecessary illustrated that rights infringements surgery and treatment in an attempt to stemming from such gender policing force their physical appearance to align is systemic and pervades multiple ele- with binary sex stereotypes.”47 ments of a person’s life, from security The latest report from the high com- in public and private settings, access to missioner’s office noted as positive de- health care, discrimination in education velopments that “Nepal and and the workplace, online security, and created a legal ‘third gender’ category, privacy. and new passport policies in Australia Much of the dedicated attention to and New Zealand allow individuals to gender identity issues has focused on choose male, female, or indeterminate underscoring the right to legal gender gender markers.”48 recognition without prerequisites of Furthermore, the report showed making physiological changes or under- leadership in explicitly referring to gen- going psychotherapy, meaning the ex- der non-conforming people, although pert mechanisms recognize and support only in the context of youth.49 Never- the delinking of sex from gender. theless, the report recommended states Despite this, expert mechanisms to address discrimination, inter alia, by thus far haven’t explicitly questioned “developing anti-bullying programs and the gender binary itself, thereby failing establishing helplines and other services to address the root cause of violations to support LGBT and gender-non-con- against all persons who are perceived to forming youth.”50 challenge or transgress restrictive socie- tal gender norms. Political bodies have CONCLUSION shown entrenched positions when it comes to recognizing gender as differen- “Instead, Title VII should recognize the pri- tiated from sex, placing more weighted macy of gender norms as the root of both responsibility on expert mechanisms sexual identity and sex discrimination, and to show leadership in contextualizing thereby the law should prohibit all forms of the violations in a gender framework, normative gender stereotyping, regardless through both dismantling the gender of the biological sex of any of the parties binary and ensuring inclusivity of all involved.” —Katherine Franke (1995)51 persons, regardless of conformity to the It is clear that the international human binary. rights normative framework is inclusive Such a positioning is necessary be- of gender identity and calls for an end cause, as affirmed by research, gen- to gender stereotyping. Expert mecha- derqueer and gender non-conforming nisms have drawn attention to patterns individuals suffer violence and discrim- of violence and discrimination against ination at similar, and sometimes even trans* persons with increasing concep- higher, rates than transgender-identi- tual and critical analyses that violations fied individuals. The ongoing existence are a form of gender policing toward of the gender binary as a norm in the in-

VOLUME VI 2015–2016 29 ternational human rights system places in London. pressure on trans*, genderqueer, and other gender non-conforming people to ACKNOWLEDGEMENTS “pass” as male or female, and addition- ally fails women, lesbian, gay, bisexual, Thanks to Micah Grzywnowicz for intersex, and other persons who are their invaluable advice and input, and perceived as challenging gender norms, to Mauro Cabral for agreeing to run an- whether through bodily characteristics, other set of eyes over this paper. gender expression or performance, or sexual orientation. ENDNOTES The two UN human rights reports 1. Katherine M. Franke, “Central Mistake that provide dedicated attention to of Sex Discrimination Law: The Disaggre- gender identity and sexual orientation gation of Sex from Gender,” The University issues have shown leadership in recog- of Pennsylvania Law Review Vol. 144, Issue nizing the gender binary as a root cause 1 (Philadelphia: University of Pennsylvania of violations. Unless states, UN mech- Law School, 1995): 2. 2. This article uses the definition of trans* anisms and agencies, and civil society as framed by Global Action for Trans* build on this analysis in international Equality (GATE). As GATE states, “Trans* advocacy and initiatives, ensuring that people includes those people who have a violations against trans* and gender gender identity different from their gender non-confirming persons are placed assigned at birth and/or those people who firmly in the gender framework, the in- feel they have to, prefer to, or choose to— ternational system will only ever be able whether by clothing, accessories, cosmetics, to address these issues on a surface level. or body modification—present themselves differently to the expectations of the assigned them at birth. This Sheherezade Kara is an independent includes, among others, transsexual and human rights consultant of mixed global transgender people, transvestites, travesti, heritage. She undertakes research, analysis, cross-dresses, [and] no gender and gender- and advocacy on women’s and LGBTIQ queer people. The term trans* should be people’s human rights at the international seen as a placeholder for many identities, level. She has worked with non-govern- most of which are specific to local cultures mental organizations, funders, academic and times in history, describing people who centers, and the UN in an advisory ca- broaden and expand a binary understand- pacity. Prior to going rogue, Kara was the ing of gender.” advocacy and communications director 3. Sunish Gulati, “The Use of Gender-Load- ed Identities in Sex-Stereotyping Jurispru- at ARC International, an organization dence,” The New York University Law Review working to advance human rights issues Vol. 78, No. 6 (New York: NYU School of relating to sexual orientation and gender Law, December 2003). Gulati uses the term identity at the UN. She has also been em- “gender-loaded identity” as an umbrella in ployed to undertake advocacy for Human place of terms or labels that define peo- Rights Watch, and for the international ple based on a failure to conform to sex solidarity network Women Living Under stereotypes, and are in turn, used to deny Muslim Laws. Kara holds a master’s degree such people sex discrimination protection. in international human rights law from While this paper chooses not use this term, the concept is nevertheless relevant. the School of Oriental and African Studies 4. “The Universal Declaration of Human

30 LGBTQ POLICY JOURNAL Rights,” United Nations, n.d. 2013; E/C Article 12/UKR/CO/6/10, 13 June 5. United Nations General Assembly (GA), 2014; E/C Article 12/JAM/CO/3-4/28, 10 Resolution 217A/1, “The Universal Declara- June 2013; CAT C/MNG/CO/1/25, 20 Jan- tion of Human Rights,” 10 December 1948. uary 2011; CAT C/KWT/CO/2/25, 28 June 6. Ibid, Resolution 217A/2. 2011; CAT C/PRY/CO/4-6/19, 14 December 7. Report of the Office of the United -Na 2011; CAT C/NOR/CO6-7/21, 13 December tions High Commissioner for 2012; CAT C/RUS/CO/5/15, 11 December Human Rights, Resolution 19/41/7, “Dis- 2012; CAT C/PER/CO/5-6/22, 21 January criminatory Laws and Practices and Acts of 2013; CAT C/GTM/CO/5-6/22, 21 June 2013; Violence against individuals Based on Their CCPR C/UKR/CO/7/10, 22 August 2013; Sexual Orientation and Gender Identity,” 17 CCPR C/URY/CO/5/12, 2 December 2013; November 2011. CAT C/USA/CO/3-5/21, 26, 19 December 8. CAT, Article 2/GC/2/21, “Transgender 2014; CAT C/HRV/CO/4-5/8, 18 December Identity,” 24 January 2008; European 2014; CAT C/SWE/CO/6-7/15, 12 December Commission (E/C) Article12/GC/20/32, 2 2014; CAT C/MNE/CO/2/23, 17 June 2014; July 2009; CEDAW Article 47/GC/2/18, 19 E/C Article 12/ECU/CO/3/30, 13 December October 2010. 2012; CAT C/FIN/CO/5-6/24, 29 June 2011. 9. The Yogyakarta Principles are a set of 17. This point is illustrated in that the UN principles on the application of interna- General Assembly resolutions on extrajudi- tional human rights law in relation to cial, summary, and arbitrary executions are sexual orientation and gender identity. thus far the only UN resolutions inclusive The principles affirm binding international of gender identity outside of the dedicated legal standards with which all states must resolution on sexual orientation and gen- comply. The principles understand gender der identity. identity to “refer to each person’s deeply 18. For reference of police killing of felt internal and individual experience of a “transvestite,” see EJEs, E/C Article gender, which may or may not correspond 4/1998/68/1/41, 19 December 1997. For an with the sex assigned at birth, including urgent appeal regarding the killing of a the personal sense of the body (which may “transvestite,” who gave male and female involve, if freely chosen, modification of first names and used masculine pronouns bodily appearance or function by medical, and was likely a victim of misgendering, surgical, or other means) and other expres- see EJEs, E/CN Article 4/2001/9/1/175, El sions of gender, including dress, speech and Salvador, 17 January 2001. For a letter of mannerisms.” allegation regarding the abuse of a “trans- 10. E/C Article 12/GC/20, 2 July 2009. gendered woman” in detention in a male 11. CRC GC/13/72, 18 April 2011. prison, who was “harassed, taunted, and 12. CEDAW GC/33/8, 23 July 2015. threatened because of her sexual orienta- 13. Ibid, at para. 49. tion,” see E/CN Article 4/2002/76/1/1711, 14. See, for example CCPR C/IRL/CO/3/8, 14 March 2002. For a letter of allegation 30 July 2008; CEDAW C/NLD/CO/5/46- regarding the verbal abuse assault of a 47, 5 February 2010; E/C Article12/DEU/ “transsexual woman” by the police, see E/ CO/5/6, 12 July 2011; CCPR C/UKR/ CN Article 4/2001/66/1171, 25 January 2001. CO/7/10, 22 August 2013; CEDAW C/BEL/ 19. See, for example, Juliet Jacques, “Trans CO/7/45, November 2014. People, Pronouns, and Language,” New- 15. This stands for lesbian, gay, bisexual, Statesman 16 January 2013: “The definition and trans people. UN mechanisms some- of transvestite has been narrowed following times also use the acronym LGBTI to also the emergence of transsexual and gen- include intersex persons. derqueer people, commonly referring to 16. E/C Article 12/PER/CO/2-4/5, 30 May people who cross-dress for sexual pleasure 2012; E/C Article 12/IRN/CO/2/7, 10 June without wishing for sex or gender reassign-

VOLUME VI 2015–2016 31 ment”), and; Aiden James Kosciesza, “I’m a 10, 29 April 2013; CRC C/SYR/CO/3-4, 9/32 Who Doesn’t ‘Pass’—And You February 2012; CEDAW C/POL/CO/7-8/22- Shouldn’t Either,” The Advocate, 20 May 23, November 2014; CEDAW C/LKA/CO/7, 2015: “Words that seemed to be standard 8/22, April 2011; and CEDAW C/ARG/ terminology as little as four years ago are CO/6/15, 16 August 2010. now out of fashion, or even taboo. When 36. Giuseppe Campuzano, “Reclaiming I began my gender transition in 2011, for Travesti Histories,” Institute of Development example, I called myself a ‘transsexual,’ a Studies Bulletin Vol. 37, No. 5 (Hoboken, word I no longer use because of its implied New Jersey: Wiley, 2006). connection between gender identity and 37. See, for example, Jane Adolphe, “‘Gen- sexuality. Yet, as words like ‘’ slink der’ Wars at the United Nations,” Ave Maria out of circulation, ‘passing’ remains frus- Law Review Vol. 11, No. 1 (Naples, Florida: tratingly well-used, even among the trans* Ave Maria School of Law, 2012). community.” 38. Sheherezade Kara, “A Policy Landscape 20. See, for example, A/64/211/23, 3 Au- of Sexual Orientation, Gender Identity, and gust 2009, which refers to metis; A/ the Internet,” Global Information Society HRC/7/28/1/1492, 3 March 2008, which Watch 2015: Sexual Rights and the Internet refers to metis; A/HRC/29/25/3/135, 27 (Mountain View, California: Creative Com- April 2015, which refers to transgender, mons/APC and Hivos, November 2015): transsexual, and travesti persons; and A/ 17-21. HRC/17/26/1/95, 18 May 2011, which refers 39. For example, those who answered “D” to transgender and travesti people. to the following survey question: “What is 21. E/CN Article 4/2002/76, 27 December your primary gender identity today?” The 27, 2001. selections were (A) Male/man, (B) Female/ 22. Ibid. woman, (C) Part time as one gender, part 23. E/CN Article 4/2004/56/64, 23 Decem- time as another, or (D) A gender not listed ber 2003. here, please specify.” 24. See, for example, A/59/319/60, 1 Septem- 40. Harrison, Jack, Jaime Grant, and Jody ber 2004; E/CN Article 4/2005/64/1/648, 29 L. Herman, “A Gender Not Listed Here: March 2005; E/CN Article 4/2005/72/1/232, Genderqueers, Gender Rebels, and Other- 18 March 2005; E/CN Article 4/2006/61/1/1, Wise in the National Transgender Discrim- 27 March 2006; A/HRC/4/34/1/28-29, 19 ination Survey,” The Williams Institute, 1 March 2007; and A/HRC/4/34/1/448-454, 19 April 2012. March 2007. 41. Ibid. 25. A/HRC/22/53/36-38, 76-79, 88, 1 Febru- 42. A/68/340/58, 21 August 2013. ary 2013. 43. Viviane K. Namaste, “Invisible Lives: 26. Sandy Stone, “The Empire Strikes Back: The Erasure of Transsexual and Trans- A Posttranssexual Manifesto,” Sandystone, gendered People” (Chicago: University of 9 April 2014. Chicago Press, 2000): 144. 27. Ibid. 44. Ibid, 144-145. 28. CCPR C/IRL/CO/3/8, 30 July 2008. 45. A/HRC/19/41/20-21, 25, 34, 50, 59, 65-67; 29. CEDAW C/NLD/CO/5/46-47, 5 Febru- A/HRC/29/23/21, 36, 63, 4 May 2015. ary 2010. 46. A/HRC/29/23/21, 4 May 2015. 30. E/C Article 12/DEU/CO/5/26, 12 July 47. A/HRC/29/23/53, 4 May 2015. 2011. 48. A/HRC/29/23/73, 4 May 2015. 31. Ibid. 49. A/HRC/29/23/22, 55, 79(f), 4 May 2015. 32. CCPR C/UKR/CO/7/10, 22 August 2013. 50. A/HRC/29/23/79(f), 4 May 2015. 33. Ibid. 51. Frank, 95, which refers to Title VII of 34. CEDAW C/BEL/CO/745, November the US Civil Rights Act of 1964, prohibiting 2014. discrimination on the basis of “race, colour, 35. See for example, CCPR C/PRY/CO/3/9- religion, sex or national origin.”

32 LGBTQ POLICY JOURNAL Human Rights Appropriation in the Development of Trans* Organizations’ Membership: The Case of Honduras

By Enrique Restoy, PhD

ABSTRACT Organizations in Honduras with trans* women as members play a significant role as promoters of human rights in a country ravaged by transphobia and impunity for crimes committed against trans* people. By appropriating human rights principles, members increase their self-esteem, while collectively demanding rights. Shared experiences of marginalization and human rights abuses explain the self-identifica- tion of members within their organizations as more than a sentiment of belonging to an LGBTQ community. As such, the government must end impunity around transphobia in Honduras, and supporters of LGBTQ rights should consider the unique human rights needs of trans* people.

INTRODUCTION human rights principles and norms, and the impact such appropriation has had International human rights norms and on their lives. principles are considered a major pillar The paper offers two main contri- in international relations theory and butions to analysis of the diffusion of have a direct effect on the protection international human rights norms from of individuals, as they constitute key global to local levels. First, the article instruments in influencing state behav- describes the crucial role human rights ior.1 The process by which international appropriation plays in the development norms, principles, and procedures dif- of membership in community-based or- fuse into national systems is widely ganizations (CBOs) of trans* women in studied in norm diffusion literature.2 Honduras. This appropriation occurs in However, there is relatively scarce re- a context of acute violence and extreme search as to how these norms travel marginalization for this community due from the international level, where they to transphobia, most members’ being are generated, to the grassroots level, employed as sex workers, and high where they are enforced. This paper HIV rates among trans* people. These studies the extent to which members norms play an important role in increas- of organizations of trans* women in ing self-esteem and a sense of solidarity Honduras have appropriated and used among members. The empowerment

VOLUME VI 2015–2016 33 effectively translates to trans* women of the trans* population in order to spe- benefitting from the application of in- cifically address the human rights-re- ternational human rights norms by lated vulnerabilities of trans* people. their CBOs through interventions which, although limited in scale and METHODOLOGY resources, provide physical security and physiological support, as well as means The main source of information for this to denounce and seek redress for viola- article was field observation and for- tions of their rights. If indeed the role of ty-two interviews with members and norm diffusion theory is to study how leaders of five trans* organizations in international norms affect people on San Pedro Sula, El Progreso, and Tegu- the ground, this paper shows how local cigalpa (all statistical analyses shown in actors other than states can ensure, al- this paper will appear in parentheses), as beit in a limited way, the application well as an additional twelve interviews of international human rights norms with non-governmental organizations when the state is unwilling or unable to (NGOs), representatives of intergovern- enforce such norms.3 mental agencies, government officials, The second main contribution is members of the judiciary, law enforce- that identification through common ment agencies, and other key actors. experiences of violence and human This field research was carried out be- rights violations may constitute stron- tween 7 and 21 July 2012. It received ger bonding among trans* women than ethical approval from the Social Science does a sentiment of a shared LGBTQ Research Ethics Committee of the Uni- identity. The construct of an LGBTQ versity of Sussex in March 2012. The re- community with a shared identity— search was carried out with the support largely entertained among key actors of of the Colectivo Unidad Color Rosa, a the human rights system and the global member of Network of Trans* Organi- HIV response— is not necessarily rele- zations in Latin America and the Carib- vant to understanding the way members bean, otherwise known as Redlactrans. develop their bonding with the trans* The most commonly utilized format organizations studied in this paper.4 of interviewing was semi-structured, The article concludes with two main which facilitated interaction with a di- policy recommendations. Firstly, the versity of people, regardless of their ed- Honduran government should enforce ucational background. This format is international and regional human rights flexible enough to adapt to various cul- standards for the protection of trans* tural and educational backgrounds, to people and other LGBTQ people, put- explore what human rights terms mean ting an end to violations of trans* per- for various actors, and to allow interloc- sons’ human rights and to widespread utors to express themselves in their own impunity for transphobia-related vio- words.5 The field research adhered to lence and discrimination. Secondly, key confidentiality, prior informed consent, actors in the international human rights and security protocols of University of system and related areas, such as devel- Sussex, as well as the International HIV/ opment and global health, should iden- AIDS Alliance (IHAA), which funded the tify the unique needs and characteristics visit.

34 LGBTQ POLICY JOURNAL CONTEXT: TRANS* WOMEN IN individuals (referred to as impuesto de HONDURAS, VIOLENCE, AND guerra, or war tax).¹⁰ HIV RISK The national HIV prevalence rate in Honduras is an estimated 0.66 per- The situation of trans* women in Hon- cent.¹¹ However, prevalence rates among duras is one of maximum HIV expo- trans* women range between a startling sure, extreme violence, discrimination, 8.2 percent in urban centers and 16 per- and social rejection. Reports show that cent in larger cities such as Tegucigalpa trans* girls and women are often ex- and San Pedro Sula.¹² Discrimination pelled from their homes at a young and persecution, violence, and sex work age. They are often subjected to vio- often push members of the trans* pop- lence at the hands of neighbors, other ulation into more risky sexual practices individuals, or families when disclosing and impede their access to HIV preven- their sexual orientation. Most trans* tion programs, rendering the HIV re- people in Honduras do not attend, or sponse highly challenging.¹³ are expelled from, secondary school because of against their sex- HUMAN RIGHTS APPROPRIA- ual identity. They subsequently end up TION AMONG MEMBERS OF on the streets, where violence against TRANS* ORGANIZATIONS trans* people is widespread.6 Hondu- ran LGBTQ rights organizations often Appropriation of human rights prin- describe this as a hate crime, defined ciples and norms as a response to col- as violence soley committed for fear or lective experiences of violence and hatred of trans* people, also known as discrimination is a key factor explaining transphobia.7 the identification of trans* women with the organizations representing them “The origin of generalized vio- in Honduras. The vast majority of the lence against trans* women is a trans* women interviewed (90 percent) triple assumption that causes re- considered themselves as human rights pulsion in society: trans* women activists, and the work of their organi- are homosexuals, prostitutes, zations to promote human rights as the and HIV-positive. That puts us at main reason for becoming members (85 the bottom of society.” —Trans* percent). leader, San Pedro Sula.⁸ Almost all informants (39) spoke about police violence and impunity for Up to 95 prercent of trans* women in crimes committed against trans* peo- Latin America engage in sex work, and ple, referring to the main threats to their 93 percent of members of trans* orga- community. Over half of trans* women nizations interviewed for this paper are interviewed spoke of a feeling of self-re- sex workers.⁹ This occupation usually jection, which manifests as an internal- takes place in the streets at night, often ization of social rejection and prejudice in neighborhoods controlled by the against them.¹⁴ Most informants (81 pandilleros or maras (armed neighbor- percent) received human rights training hood gangs). These groups extort part in seminars provided by trans* organi- of the profit obtained by businesses and zations, often through peers. The main

VOLUME VI 2015–2016 35 international norms on which these or- “I know I have all the same rights ganizations focus their training are the as everybody else. For me, the right to non-discrimination in access- right that is least guaranteed is ing health care, employment, and edu- the right to health care, because cation; freedom from torture and cruel, I know that if I go to a hospital as inhuman, and degrading treatment by a woman, the doctors will treat law enforcement officers; and a right to me badly and will think I am HIV justice and redress.¹⁵ When discussing positive. After that, the right to which of their human rights was most education and to employment valuable to them, rather than intuitive [are least guaranteed] because I responses such as a right to life, to not will never get a job as a woman. be tortured, or to not be subjected to As for the right to life and not to cruel, inhuman or degrading treatment, be harassed by the police, I know the most common responses were a that is one of the main rights, but right to employment and education, we are so used to [being victims and in some instances, freedom from of harassment and violence], discrimination. that we almost take violence against us for granted . . . One of “The thing I fear the most is my main worries when I am put- being killed by a client or by the ting my makeup on before going police, or that another trans* out in the night is whether a po- attacks me on the liceman will beat me or kill me.” street.” —Trans* sex worker, Te- —Trans* sex worker, San Pedro gucigalpa¹⁶ Sula¹⁹

“The right I think we need most Most of the trans* women interviewed is the right to work. I always (81 percent) stated they felt safer be- wonder what is going to become longing to a trans* organization, even of me when I can no longer work if some acknowledged that the human as a sex worker. I graduated in IT, rights work of these organizations may but I know I could never work be exposing them retaliation by police in that as a women. I have de- officers or members of organized crime cided to revert back to having a syndicates (35 percent). This sense of se- masculine appearance because I curity is closely associated with higher know I will never, ever get a job self-esteem and social empowerment to as a trans* woman in Honduras. confront prevailing social, cultural, and It would be a miracle.” —Trans* religious norms.²⁰ Most respondents sex worker, San Pedro Sula¹⁷ considered knowing about their human rights had increased their self-esteem, Respondents showed various degrees of particularly in relation to family or assimilation of violence against trans* friends (74 percent), in their rapport people, from total outrage to the point with the police (71 percent), when seek- of seeing it natural and hard to change. ing public health care service (62 per- This is the case even among some highly cent), and when dealing with other civil empowered women.¹⁸ servants (60 percent).

36 LGBTQ POLICY JOURNAL “Knowing about my human Honduras has ratified all relevant rights, and also my obligations, international standards protecting in- has helped me to feel more re- dividuals against discrimination and spected socially. But also within torture, including the International my own family, who used to re- Covenant on Civil and Political Rights ject me. My parents are illiterate, (ratified in 1997), the International Cov- and it has been hard to explain enant on Economic, Civil, and Political to them that as a trans* woman, Rights (ratified in 1981), the Convention I should also be considered as a Against Torture (ratified in 1996) and human being worthy of respect. the Convention on the Elimination of I haven’t been able to convince All Forms of Discrimination against my dad, but my mom accepts Women (ratified in 1983).23 Honduras me now. I even work with her in has also ratified the American Conven- her shop dressed as a woman.” — tion on Human Rights, which includes Trans* activist, San Pedro Sula²¹ provisions for the right to privacy and equal protections that have been inter- PROMOTING THE HUMAN preted to cover sexual orientation and 24 RIGHTS OF TRANS* PEOPLE gender identity. Honduras, along with FACING VIOLENCE AND other countries in the region, signed four Organization of American States IMPUNITY (OAS) resolutions between 2008 and As described earlier, the membership 2011 on human rights and sexual ori- of the trans* organizations studied for entation, whereby governments in the this paper has largely been developed region acknowledged the high level of through the appropriation of human targeted violence against the LGBTQ rights norms and principles among their population across Latin America and members. Such appropriation is facil- expressed their commitment to protect itated by the role trans* organizations LGBTQ people.25 play in the promotion of the human In a context of weak state structures, rights for trans* people, through the the incapacity of Honduran authori- provision of essential human rights pro- ties (both government and judiciary) to grams, such as “know your rights” and enforce international norms may not access to justice and redress. Organiza- mean the state is unwilling to imple- tions of trans* women provided legal ment such norms.26 However, as far as counseling and accompaniment to lodge the Honduran trans* population is con- complaints at policy or prosecutors’ of- cerned, international norms protecting fices to almost two-thirds of the trans* their human rights are not reaching women interviewed for this paper (26). them.27 The state is not only failing to These organizations’ practices of pro- protect the human rights of trans* peo- moting trans* women’s human rights ple; according to human rights reports, are of particular relevance in the context state actors are actively violating these of Honduras, where not only are the human rights directly, through the ac- government and other state institutions tion of law enforcement officers and failing, but are also often the cause of widespread impunity for crimes com- these very human rights violations.22 mitted against this population.28

VOLUME VI 2015–2016 37 The case of Colectivo, the largest arbitrary detentions of trans* women, trans*, HIV, and human rights orga- and serves as a tool for police officers to nization operating in and around San use when extorting money from trans* Pedro Sula, is illustrative. Institutions of sex workers and their clients.³³ One the international human rights system common pattern of police corruption recognize Colectivo; in fact, in 2009 is seen when a trans* sex worker enters and 2010, representatives of the organi- a potential client’s car. One or several zation were chosen to speak to the OAS police officers will stop the car and take General Assembly prior to the passage out the client and sex worker separately. of resolutions on sexual orientation and They will blackmail the client, threat- gender identity. However, in Honduras, ening him with public exposure, while Colectivo is registered with the authori- they beat the sex worker, either on the ties, not as a human rights organization, street or at the police station, where she but as a sports club, since LGBTQ rights is retained for up to twenty-four hours organizations are reportedly illegal.29 unless she pays a bribe.³⁴ This pattern Between 2009 and 2012, at least reflects wider social rejection and dis- fifteen members of Colectivo were crimination to which the police actively killed—nearly 25 percent of the organi- contribute.³⁵ zation’s total membership. In none of The high level of impunity asso- these cases were the perpetrators iden- ciated with violence against trans* tified. Nevertheless, organization mem- people, along with weaknesses of law bers accompany victims of violence and enforcement and judiciary systems, human rights violations allegedly com- underpin how discrimination against mitted by police officers and civil ser- trans* women penetrates legal struc- vants. They have helped lodge dozens tures. Out of the fifty-one murders of of complaints the past few years. How- trans* women and hundreds of cases ever, between 2009 and 2012 no law of attempted murder and other acts enforcement agent was prosecuted for of violence against trans* women re- any of the cases filed.30 Senior Colectivo ported between 2004 and 2012, only members have allegedly received death one person was reportedly convicted.³⁶ threats, including by police officers, and This situation reflects poorly on the as a result, cannot meet in the premises prosecution office, which lacks protocol of the organization.31 to identify trans* victims and renders Some representatives of the police the disaggregation of trans* women and judiciary consider trans* sex work- among broader LGBT victims impossi- ers a group that poses a threat to social ble. The trans*-disaggregated statistics peace and security, as they “scandalize and official analyses of trans*-related the population, with attitudes that are violence are lacking because police do not sociably acceptable, and are often not regard trans* people as a separate linked to the illegal drug market and subpopulation from other constituents the organized crime.”³² The substantial of the LGBTQ population.³⁷ Confusion power and discretion given to the police around gender identity also extends to in provisions of the Law on Police and the judiciary itself, which regards trans* Social Affairs (Ley de Policía y de Convi- people as transvestites, or men dressed vencia Social) facilitates police abuse and as women.³⁸

38 LGBTQ POLICY JOURNAL There is also little interest for action LGBTQ IDENTITY AND MEMBER- among external actors such as other SHIP OF ORGANIZATIONS OF states, donors, or international NGOs, TRANS* WOMEN whose support for these international norms is necessary for their effective Larger Honduran LGBTQ organiza- adoption and enforcement in Hondu- tions often include trans* women in ras. An illustrative example is the behav- their ranks. However, some trans* or- ior of international HIV donors. Trans* ganizations began to break away from organizations are often encouraged by these larger, broader organizations in donors to carry out HIV interventions the late 2000s. All the women inter- and human rights work. This empow- viewed belonged uniquely to trans* erment encourages women to be vocal organizations, either as leaders, volun- in their attempts to influence the state, teers, or regular members. The man- thereby exposing them to violence and agement and governance structures of harassment by the state itself. However, these organizations are extremely weak no provisions are usually made among due to the lack of resources to pay full- HIV donors as to the safety of these peo- time staff and the difficulty of forming ple and the longer-term sustainability of dedicated boards.41 Turnover is high, these organizations.³⁹ largely due to high morbidity from vio- lence and AIDS prevalence in the trans* “I am an HIV specialist. I worked community.⁴² between 2004 and 2008 at the The key role these organizations play Center for Education and Preven- in the diffusion of international norms tion for Sexual Health and HIV, originates the CBOs’ ability to foster a and between 2008 and 2010 at sense of identification among trans* the Pan-American Association of people. There is a widespread assump- Social Marketing in HIV Preven- tion in literature and among civil so- tion. During that time I felt safe. ciety that such identification is largely When funding for HIV preven- based on a sense of belonging to a larger tion programs drained, I had to LGBTQ community.43 However, most go back to sex work. In October Honduran trans* women interviewed 2011, I was shot at four times by did not strongly identify with other two individuals who were wait- parts of the LGBTQ population (76 per- ing for me outside a cafe. It was cent of informants), mostly referring to the fourth attack in just over ten perceived discrimination against trans* years. I know the police are after women among the larger LGBTQ com- me because I witnessed police- munity as a main reason for not identi- men killing a trans* sex worker. fying with other LGBTQ people (25). I testified against some of them. Now I am terrified of denounc- “For most gays, trans* women are ing this situation. The system just pathetic souls, prostitutes has failed to provide me with a pumped up with hormones.” — sustainable job that gives me se- Trans* HIV peer-educator, San curity.” —Trans* HIV and human Pedro Sula⁴⁴ rights activist, San Pedro Sula⁴⁰

VOLUME VI 2015–2016 39 “I realize that there is a lot of ing to an LGBTQ community, the ap- resentment among the trans* propriation of human rights principles community against the larger and norms as a response to collective LGBT rights movement. It is experiences of violence and discrimi- often the same people who nation emerges as a key factor explain- control the movement—gay ing the development of membership of men mostly—who control the trans* organizations in Honduras. funding, the programs, and the political spaces.” —Trans* CONCLUSION HIV and human rights activist, Tegucigalpa⁴⁵ This case study presents evidence of the role the appropriation of international Few trans* women interviewed saw human rights norms and principles themselves as belonging to a community plays in the development of member- of trans* women (28 percent of infor- ship in trans* organizations in Hondu- mants). Responses to the question about ras. This appropriation is facilitated by which community or communities to a context of widespread discrimination, which they thought they belong consid- violence, and violations of the human erably varied across geographies, fami- rights of trans* people. Members of lies, the LGBT community, sex workers, trans* organizations often share expe- and even religious communities. riences of such violations and see their organizations as a way to respond to “I have always believed that I be- abuses. This study has the limitations longed to my parish [evangelical of being circumscribed to the study of church]. I was very integrated in members of trans* organizations in the church activities. One day, three locations and being based upon the pastor came to me and asked interviews with a small relative sample me to take a one or two years’ size. However, through their interven- break to make up my mind, hint- tions these organizations play a sub- ing that I should go back to being stantial role in generating local human a man . . . I never went back.” — rights practice based on international Trans* sex worker, San Pedro human rights. This activity provides Sula⁴⁶ evidence in support of norm diffusion literature in further analyzing the role Informants’ responses underscore that of non-state actors in the dissemination the construct of an LGBTQ commu- of international norms at the grassroots nity is not particularly relevant as a key level. It also generates an important element of membership development policy recommendation for the Hon- among the trans* organizations ana- duran government to guarantee the re- lyzed for this paper, even while this con- spect, protection, and fulfillment of the struct is often used by key actors of the human rights of trans* people and other human rights system and other global LGBTQ people, ending widespread im- governance systems, such as the HIV punity for violence and discrimination response.⁴⁷ This paper shows that, in In rooted in transphobia. the absence of a strong sense of belong- Furthermore, this paper highlights

40 LGBTQ POLICY JOURNAL the need to further analyze and nuance Norms.” Restoy is a member of the Human the concept of an LGBTQ community Rights Reference Group of the Global Fund in order to better understand relations to fight AIDS, TB, and Malaria, and sits among various populations within the on the advisory board of Sexual Minorities LGBTQ construct and accommodate Uganda (SMUG). the specific needs of each population. As far as key actors in the human rights ENDNOTES system and related areas such as HIV 1. Finnemore, Martha, and Kathryn Sikkink, and wider development are concerned, “International Norms Dynamic and Polit- a considerable but essential challenge is ical Change,” International Organizations to address the specific human rights-re- Vol. 52, No. 4 (Cambridge: Cambridge Uni- lated vulnerabilities of trans* people in versity Press, 1998): 887-917; Risse, Thomas, contexts like Honduras, where social and Kathryn Sikkink, “The Socialization of International Human Rights Norms into rejection of gender identity, sex work, Domestic Practices: Introduction,” The organized crime, HIV, and many other Power of Human Rights, International Norms factors converge to threaten both the and Domestic Change, eds. Risse, Thomas, wellbeing of individual members of Stephen C. Ropp, and Kathryn Sikkink trans* organizations and their work. (Cambridge: Cambridge University Press, 1999); Amitav Acharya, “How Ideas Spread: Enrique Restoy is Senior Technical Ad- Whose Norms Matter? Norm Localization visor for Human Rights at the Interna- and Institutional Change in Asian Region- tional HIV/AIDS Alliance, in charge of alism,” International Organizations Vol. 58, No. 2 (Cambridge: Cambridge University the global human rights strategy for over Press, 2004): 239-275. forty independent, indigenous HIV orga- 2. Krook, Mona Lena, and Jacqui True, nizations in Africa, Asia, eastern Europe, “Rethinking the Life Cycles of International and Latin America. Restoy has held senior Norms: The United Nations and the Inter- management positions in Anti-Slavery national Promotion of ,” International and the Coalition to Stop European Journal of International Relations the Use of Child Soldiers, as well as hav- Vol. 18, No. 1 (Thousand Oaks, California: ing served as a researcher for West Africa SAGE Publications, 2010): 103-127; Ann E. in the International Secretariat of Am- Towns, “Norms and Social Hierarchies: Un- nesty International. He is the author of derstanding International Policy Diffusion ‘From Below’,” International Organizations numerous research and training publica- Vol. 66 (Cambridge: Cambridge Univer- tions involving human rights monitor- sity Press, Spring 2012): 179-209; Garrett ing, programming, and advocacy, with a Wallace Brown, “Norm Diffusion and particular emphasis on community-led Health System Strengthening: the Per- human rights responses to HIV, including sistent Relevance of National Leadership in LGBTQ organizations and other grass- International Health Governance,” Review roots organizations of key populations in of International Studies Vol. 40 (Cambridge: the HIV response. He was awarded a PhD Cambridge University Press, 2014): 877-896. in January 2016 by the University of Sus- 3. Krook and True, “Rethinking the Life Cycles of International Norms”; and Brown, sex, United Kingdom, for a thesis titled “Norm Diffusion and Health System “Global Norms-Domestic Practice: The Strengthening.” Role of Community-Based Organizations 4. Deborah P. Amory, “ in the Diffusion of HIV and Human Rights in Africa: Issues and Debates,” Journal of

VOLUME VI 2015–2016 41 Opinion Vol. 25, No. 1 (Piscataway, New der,” Sexually Transmitted Diseases Vol. 39, Jersey: African Studies Association, 1997): No. 1 (Durham, North Carolina: American 5-10; Sylvia Tamale, ed., African Sexualities, Sexually Transmitted Diseases Association, a Reader (Oxford: Pambazuka Press, 2011); January 2012): 35-41. Harper, Gary W., and Margaret Schneider, 13. Borgogno, and Ulises, and Ignacio Ga- “Oppression and Discrimination Among briel, “La Transfobia en América Latina y el Lesbian, Gay, Bisexual, and Transgendered Caribe: Un Estudio en el Marco de Redlac- People and Communities: A Challenge for trans,” Redlactrans, 2009. Community Psychology,” American Journal 14. Neal, Charles, and Dominic Davies, of Community Psychology Vol. 31, Nos. 3/4 eds., Pink Therapy: Guide for Counsellors and (New York: Springer, June 2003); Frost, Therapists Working with Lesbian, Gay and David M., and Ilan H. Meyer, “Measuring Bisexual Clients (Philadelphia: Open Univer- Community Connectedness Among Di- sity Press, 1996). verse Sexual Minorities Populations,” Jour- 15. Interviews with trans* leaders, July 2012. nal of Sex Research Vol. 49, No. 1 (Abingdon, 16. Interview with trans* sex worker, 18 July England: Routledge, 2012): 36-49. 2012. 5. Gabriele Beissel-Durrant, “A Typolo- 17. Interview with trans* sex worker, 12 July gy of Research Methods Within Social 2012. Sciences,” NCRM Working Paper, ESRC 18. Currie, Matthew, Everada G. Cunning- National Centre for Research Methods and ham, and Bruce Findlay, “The Short Inter- Southampton Statistical Sciences Research nalized Homonegativity Scale: Examination Institute, November 2004; Coomans, Fons, of the Factorial Structure of a New Measure Fred Grünfeld, and Menno T. Kamminga, of Internalized Homophobia,” Educational Methods of Human Rights Research (Ant- and Psychological Measurement Vol. 64, No. werp, Belgium: Intersentia, 2009). 6 (Thousand Oaks, California: SAGE Publi- 6. “Informe Alternativo; Impunidad y Que- cations, December 2004): 1053-1067. brantamiento de las Garantías Judiciales 19. Interview with trans* sex worker, 12 July de los Derechos Humanos de las Personas 2012. Lesbianas, Gais, Transgéneras, Bisexuales e 20. Neal and Davies, Pink Therapy. Intersexuales en la Causa Penal en Hondu- 21. Interview with trans* activist, 12 July ras,” presentation by Red Lésbica Cattra- 2012. chas, 9 September 2014. 22. “’Not Worth A Penny’: Human Rights 7. “GENEQ Transgender,” Gender Equity Abuses Against Transgender People in Resource Center, University of Califor- Honduras,” Human Rights Watch, 29 May nia-Berkeley, 2010. 2009. 8. Interview with trans* leader, 11 July 2012. 23. Convention Against Torture and Other 9. Monica Leonardo, “The Night is Another Cruel, Inhuman or Degrading Treatment Country: Impunity and Violence Against or Punishment, United Nations, 9 October Transgender Women Human Rights 1999; Convention on the Elimination of All Defenders in Latin America” IHAA and Forms of Discrimination Against Women, REDLACTRANS, 2012: 25. United Nations, 9 October 1999. 10. “Country Reports on Human Rights 24. American Convention on Human Practices,” US Department of State, 2011. Rights, Pact of San Jose, OAS, Costa Rica, 22 11. “Informe Nacional Sobre los Progresos November 1969. Realizados en la Aplicación del UNGASS,” 25. OAS General Assembly AG/RES 2653/ Secretaría de Salud de Honduras, 2010. XLI-O/11, “Derechos Humanos, Orientación 12. Paz-Bailey, Gabriela, et al., “Unsafe Sexual e Identidad de Género,” 7 June 2011. Sexual Behaviors Among HIV-Positive 26. Davies Sara E., Adam Kamradt-Scott, Men and Women in Honduras: The role of and Simon Rushton, Disease Diplomacy: Discrimination, Access, and Gen- International Norms and Global Health Secu-

42 LGBTQ POLICY JOURNAL rity (Baltimore: Johns Hopkins University and Discrimination Among Lesbian, Gay, Press, 2015). Bisexual, and Transgendered People and 27. Cortell, Andrew P., and James W. Davis, Communities”; D. McGhee, “Joined-Up Jr., “Understanding the Domestic Impact of Government, `Community Safety’ and International Norms: a Research Agenda,” Lesbian, Gay, Bisexual, and Transgender International Studies Review Vol. 2, No. 1 ‘Active Citizens,’’ Critical Social Policy Vol. 23 (New York: Wiley, 2000): 65-87. (New York: SAGE Publications, 2003): 345. 28. “’Not Worth A Penny’,” Human Rights 44. Interview with trans* HIV peer-educa- Watch. tor, 13 July 2012. 29. Interview with trans* leader, 11 July 45. Interview with trans* HIV and human 2012. rights activist, 13 July 2012. 30. Leonardo, “The Night is Another Country.” 46. Interview with trans* sex worker, 16 31. Interview with trans* leader, 12 July July 2012. 2012. 47. Lin, Yen-jui, and Tania Israel, “Devel- 32. Martín Madrid (Superintendent of Jus- opment and Validation of a Psychologi- tice, Security, and Transport, Municipality cal Sense of LGBTI Community Scale,” of San Pedro Sula), in discussion with the Journal of Community Psychology Vol. 40, author, 12 July 2012; Atilio Flore Morazán No. 5 (New York: Springer 2012): 573-587; (National Director, Criminal Investigation, “Investigación Sobre los Crímenes de Odio Honduras Police), in discussion with the Contra las Personas LGBTI en Honduras author, 17 July 2012; and Argentina Fuentes, 2005-2009,” Asociación LGBTI Arcoiris (Department Head, Crimes Against Life, de Honduras and Centro de Investigación DNIC), in discussion with the author, 17 y Promoción de los Derechos Humanos July 2012. (CIPRODEH), November 2009; “Informe 33. Republic of Honduras, Decreto No. 226- Alternativo,” Cattrachas. 2001 “Ley de Policía y Convivencia Social” (Policing and Social Harmony Law), Poder Legislativo; Leonardo, “The Night is Anoth- er Country.” 34. Interview with trans* leader, 11 July 2012. 35. Leonardo, “The Night is Another Country.” 36. Ibid; “Honduras: Police Officer Sen- tenced for Stabbing ,” Human Rights Watch, 10 Septem- ber 2010. 37. Morazán, in discussion with the author, 17 July 2012 38. Germán Enamorado (Human Rights Prosecutor, Public Ministry, Republic of Honduras, in discussion with the author, July 2012. 39. Interview with trans* HIV and human rights activist, 18 July 2012. 40. Interview with trans* HIV and human rights activist, 13 July 2012. 41. Interview with tran* leader, 11 July 2012. 42. Morazán, in discussion with the author, 17 July 2012; and Fuentes, in discussion with the author, 17 July 2012. 43. Harper and Schneider, “Oppression

VOLUME VI 2015–2016 43 ANNEX: SELECTED DATA ANALYSIS CHARTS

44 LGBTQ POLICY JOURNAL and the Right to Health

By Ignatius Yordan Nugraha

ABSTRACT Many trans people all over the world are refused access to sex reassignment therapy under the pretext it is merely cosmetic and unnecessary. However, this paper will demonstrate that under international human rights law, the right to health entitles them to such therapy, since evidence-based medicine demonstrates it is one appro- priate treatment for . Thus, this paper will conclude international human rights law mandates governments to provide sex reassignment therapy for trans people who are medically in need of it.

In many parts of the world, the right of However, this paper intends to trans people to obtain sex reassignment demonstrate such an argument is misap- therapy is still denied. They are forced prehension. This piece will demonstrate to conform to one of the binary gender sex reassignment therapy is a necessary identities assigned to them at birth. As treatment for trans people, since evi- an illustration, according to a survey by dence-based medicine suggests gender Transgender EuroStudy on the health- mismatch may lead to mental problems care experiences of trans people in the such as severe depression. It will inves- European Union, more than 80 percent tigate current scientific literature on the of respondents are refused coverage for issue to support its argument. Eventu- hormonal treatments or sex reassign- ally, it will conclude that since sex reas- ment surgery by the state.1 One of the signment therapy is one of the essential reasons it is often invoked to deny this treatments to ensure the mental health right is sex reassignment therapy is re- of trans people, governments are obliged garded as unnecessary, as compared to under international human rights law other treatments required to save lives, to ensure trans people have access to it. such as kidney dialysis for people with For countries without the facilities or kidney failure or chemotherapy for can- legal provisions to ensure sex reassign- cer. Following this premise, it is argued ment therapy, the paper will reiterate priority should be given to life-threat- the reasoning of the European Court of ening diseases like congenital heart dis- Human Rights in the case of L v. Lithu- ease or leukemia, which undermine the ania, in which the court ruled that states underlying determinants of health, and are required to cover the cost of sex re- as a result, the right to sex reassignment assignment surgery abroad. In sum, this therapy is neglected.2 paper will contribute to the discourse by

VOLUME VI 2015–2016 45 incorporating evidence-based medicine In addition to these difficulties, many to establish that trans people have the societies all over the world still stigma- right to sex reassignment therapy under tize LGBT individuals.9 This contributes the right to health within international to the development of various mental human rights law. health problems, including anxiety and depression.10 Although the Institute of SCIENTIFIC FINDINGS ON THE Medicine observed in 2011 that “these MEDICAL NECESSITY OF SEX symptoms are socially induced and are REASSIGNMENT THERAPY not inherent to being transsexual, trans- gender, or gender-nonconforming,” Today’s world is still rather hostile to trans people still have to grapple with trans people. As a marginalized com- the gender dysphoria that they experi- munity, it faces discrimination in vari- ence.11 Gender dysphoria is defined as ous sectors, including legal and health “discomfort or distress that is caused by care institutions.3 The Institute of a discrepancy between a person’s gender Medicine reported in 2011 that “LGBT identity and that person’s assigned sex individuals face financial barriers, lim- at birth.”12 This condition is classified as itations on access to health insurance, a mental disorder by the World Health insufficient provider knowledge, and Organization (WHO) in the ICD-10 and negative provider attitudes that can be by the American Psychiatric Association expected to have an effect on their ac- in DSM-5.13 Such pathologization is cess to health care.”4 Moreover, in many controversial since there is a consensus jurisdictions legal recognition of trans that trans identity is not related to any people is still lacking, and consequently, psychopathology.14 Despite the contro- they face legal challenges in expressing versy, the distress of gender dysphoria their gender identities.5 Meanwhile, remains a problem that might affect the transphobic violence remains a serious mental health of trans people.15 problem.6 As reported by trans activist In relation to this, there is a con- and researcher Carla LaGata, trans peo- sensus among researchers that sex re- ple face “severe forms of hate violence, assignment therapy is one appropriate including hate killings, rape, and tor- treatment for gender dysphoria. The ture; criminalization and prosecution American Psychological Association of- of so-called cross-dressing, so-called ficially stated in 2012 that “appropriately cross-gender behavior, and gender reas- evaluated transgender and gender vari- signment surgery; and prosecution that ant individuals can benefit greatly from especially targets trans/gender-variant medical and surgical gender transition people without legal basis or based on treatments.”16 Moreover, various fol- legislation and legal measures designed low-up studies demonstrate this treat- for other purposes.”7 In 2001, Human ment is effective.17 A study by Green and Rights Watch even reported that in the Fleming in 1990 showed that “satisfac- United States alone, trans people are tion rates across studies ranged from 87 subject to discrimination, harassment, percent of male to female (MtF) patients and violence in schools, which is exac- to 97 percent of female to male (FtM) erbated by the failure of the state to ad- patients, and regrets were extremely dress such problems.8 rare (1 percent to 1.5 percent of MtF pa-

46 LGBTQ POLICY JOURNAL tients and less than 1 percent of FtM pa- important scientific findings on the tients).”18 Another post-operative study medical necessity of sex reassignment of 162 adults demonstrated patients who therapy for trans people. The issue now underwent sex reassignment no longer is whether this result can be invoked experienced gender dysphoria and that to determine, if under international “the vast majority functioned quite well human rights law, the right to health psychologically, socially, and sexually.”19 requires states to ensure access to sex Although some patients experienced reassignment therapy. Before assessing distress, anxiety, or depression at the be- if this is the case, it is first important to ginning of therapy, during the therapy note the 1945 WHO constitution de- there is “a marked reduction is psycho- fines health as not merely the absence pathology.”20 Furthermore, the denial of diseases, but also “a state of complete of access to sex reassignment therapy physical, mental, and social well-be- might result in “serious health compli- ing.”25 Consequently, states are called cations, including anxiety, depression, to undertake “adequate health and so- suicide ideation, and self-induced gen- cial measures” to this end.26 Moreover, ital mutilation,” while “refusing timely Article 12(1) of the International Cove- medical interventions for adolescents nant on Economic, Social, and Cultural might prolong gender dysphoria and Rights (ICESCR) emphasizes that “the contribute to an appearance that could States Parties to the present Covenant provoke abuse and stigmatization.”21 recognize the right of everyone to the Consequently, as was emphasized by enjoyment of the highest attainable the Standard of Care for the Health of standard of physical and mental health,” Transsexual, Transgender, and Gen- and Article 12(2) of the ICESCR also re- der-Nonconforming People, “hormone quires states to take steps to achieve the therapy and surgery have been found to full realization of the right to health.27 be medically necessary to alleviate gen- This was affirmed by the United Na- der dysphoria in many people.”22 How- tions Committee on Economic, Social, ever, it should be noted the appropriate and Cultural Rights (CESCR) in General treatment varies between individuals, Comment 14, which maintained the since “gender-confirming health care right to health “embraces a wide range is individualized treatment that differs of socioeconomic factors that promote according to the medical needs and conditions in which people can lead a pre-existing conditions of individual healthy life.”28 transgender people.”23 Some individuals In short, the right to health requires might require surgery or both hormonal states to undertake measures in order to and surgical treatments, while others achieve the highest attainable standard can express their cross-gender feeling of health. Based on this starting point, within the assigned sex at birth.24 it can be argued that the right to health also covers the right to sex reassign- THE RIGHT OF TRANS PEOPLE ment therapy. As part of the obligation TO SEX REASSIGNMENT THERA- under the right to health, Article 12(2d) PY AND THE RIGHT TO HEALTH of the ICESCR requires states to take measures necessary for “the creation of The previous section outlined various conditions, which would assure to all

VOLUME VI 2015–2016 47 medical service and medical attention This constitutes not only a regressive in the event of sickness.”29 Since the step in the determination to achieve the evidences outlined above support sex highest attainable standard of health, reassignment therapy as necessary to but also a direct contravention of the treat gender dysphoria and to enhance obligation to respect. the wellbeing and mental health of trans The obligation to respect, protect, people, it falls within the category of and fulfill also indicates the exclusion of “medical service and medical attention sex reassignment therapy from health in the event of sickness.” Thus, states insurance coverage can be considered are obliged under Article 12(2d) of the a violation of the right to health. Some ICESCR to provide treatment for those trans people are disenfranchised and are who require it. This may include sex re- not endowed with abundant resources. assignment surgery, chest reconstruc- Without health insurance reimburse- tion surgery, or hormonal treatment, ment, access to sex reassignment ther- whose applicability depends on the in- apy as a medically necessary treatment dividual requirements of a patient. is severely impeded—which is contrary The right to health itself consists of to the accessibility element of the right the tripartite obligation to respect, pro- to health. As was held by the CESCR, tect, and fulfill, which also applies to sex “payment for health care services . . . has reassignment therapy.30 The obligation to be based on the principle of equity, to respect requires states to refrain from ensuring that these services, whether infringing on the right to health by de- privately or publicly provided, are af- nying sex reassignment therapy, while fordable for all, including socially disad- under the obligation to protect states vantaged groups.”34 Thus, under Article must prevent third parties from inter- 12 of the ICESCR, states are mandated fering with the right of trans people to to ensure sex reassignment therapy as sex reassignment therapy. With regard a medically necessary treatment is in- to the obligation to fulfill, the CESCR cluded in health insurance coverage in holds that it consists of adopting “ap- order to ensure access for those who re- propriate legislative, administrative, quire it. budgetary, judicial, promotional, and It should be noted that the obligation other measures towards the full realiza- under the right to health is subject to tion of the right to health.”31 In addition progressive realization under Article 2(1) to this, the CESCR has ruled the right of the ICESCR, since some states do not to health in all of its manifestation must possess sufficient resources and capabil- be geared towards the availability, ac- ities to achieve this right.35 The CESCR cessibility, acceptability, and quality of has further held in General Comment 3 health care.32 These obligations imply that “any deliberately retrogressive mea- the denial of sex reassignment ther- sures in that regard would require the apy or the limitation of such treatment most careful consideration and would would be contrary to the right to health. need to be fully justified by reference to By denying or limiting treatment, vari- the totality of the rights provided for in ous psychopathologies such as anxiety the Covenant and in the context of the or depression might be inflicted, as was full use of the maximum available re- highlighted in the previous section.33 sources.”36 This implies the right to sex

48 LGBTQ POLICY JOURNAL assignment therapy is subject to prag- “unduly heavy” for the state concerned. matic policy consideration in light of As a note, the approach linking sex available resources. Nonetheless, it does reassignment therapy with the right not mean that states are excused to ig- to health cannot be conflated with nore the right to sex reassignment ther- pathologization of trans identity. Sex apy, since they are still obliged to take reassignment treatment is a medically the necessary steps to achieve the full important treatment for psychopathol- realization of that right. The has CESCR ogies associated with gender dysphoria. ruled states that are constrained eco- The incorporation of this treatment nomically from full compliance “have under the right to health is intended the burden of justifying that every ef- to enhance the health and wellbeing of fort has nevertheless been made to use trans people by removing barriers to it, all available resources at its disposal in since this right requires governments to order to satisfy as a matter of priority take measures to ensure the availability, the obligations.”37 accessibility, acceptability, and quality of At the European level, although medically necessary treatments. It does the ruling per se is concerned with the not suggest pathologization of trans right to privacy, the European Court people in any way. In fact, the patholo- of Human Rights (ECHR), in the case gization of trans identity would be con- of L v. Lithuania ordered the state of trary to human rights in general. As was Lithuania to pay 47,680 euro for the observed by the special rapporteur on applicant to undergo sex reassignment torture Sir Nigel Rodley, pathologiza- surgery abroad due to the lack of proper tion of sexual minorities might result in medical facilities in Lithuania.38 In this involuntary confinement “to State med- respect, the ECHR utilized pragmatic ical institutions, where they could be consideration by considering the po- allegedly subjected to forced treatment tential budgetary burden of such an on grounds of their sexual orientation operation, which was deemed not to be or gender identity, including electric “unduly heavy.”39 At the international shock therapy and other ‘aversion ther- level, such a measure may also be one apy,’ reportedly causing psychological of the possible steps states might take and physical harm.”40 in order to fulfill the right to health of trans people, particularly for those who SEX REASSIGNMENT THERAPY do not yet possess the necessary medical AND THE ISSUE OF LEGAL GEN- equipment or facilities to perform sex DER CHANGE reassignment therapy. While this step is still subject to pragmatic consideration Various jurisdictions currently impose of the economic capability of a certain the requirement of sex reassignment state, it demonstrates that states can- therapy or surgery for legal gender not hide behind the veil of lacking ap- change.41 For instance, the Californian propriate medical facilities to deny sex Health and Safety Code enshrines that reassignment therapy for trans people, “the State Registrar shall issue a new since there is a possibility of financing birth certificate reflecting a change of sex reassignment therapy abroad, pro- sex without a court order for any per- vided the budgetary requirement is not son born in this state who has under-

VOLUME VI 2015–2016 49 gone clinically appropriate treatment consensual medical treatment under for the purpose of gender transition.”42 the right to health. Meanwhile, the state of demands proof of sex reassignment CONCLUSION surgery in order to institute legal gen- der change, and this is also the case for This paper has demonstrated that since many other states as North Carolina sex reassignment therapy is medically and Arkansas.43 necessary for trans people, the right to This requirement poses a problem health obliges states to ensure access for trans people who do not wish for sex to such treatment, albeit subject to reassignment therapy and would prefer pragmatic consideration over available to express their cross-gender feeling resources due to the “progressive reali- within their assigned sex at birth, as zation” aspect of the right to health. At they would be forced to undergo such a the same time, the right to health cannot procedure in order to be able to change be abused to impose the requirement of their official gender. At the same time, sex reassignment therapy for legal gen- such a requirement ignores the indi- der change. This contradicts not only vidualized nature of sex reassignment the right to privacy of trans people, but therapy, and the imposition of an un- also the right to health itself, since this desired therapy might have serious re- right includes the right to be free from percussions to health and well-being. interference, including nonconsensual This is contrary to the right to health. medical treatment. Although the previous section has elab- Thus, it can be concluded interna- orated the applicability of the right to tional human rights law provides a dou- health for trans people who are in need ble-edged protection for trans people of sex reassignment therapy medically, vis-à-vis their right to health. On one the right to health also has another di- hand, it requires states to ensure access mension, which is “the right to control to medically necessary sex reassignment one’s health and body . . . and the right therapy and to refrain from limiting it. to be free from interference, such as the On the other, it protects them from right to be free from . . . nonconsensual nonconsensual and arbitrary decisions medical treatment.”44 This implies the to force surgery or hormone therapy right to health does not only require for trans people who do not consent for states to ensure medically necessary it. The applicability of each of these as- treatment, but also obliges states to pects depends on the individual case of refrain from imposing nonconsensual a trans person. If that person is in need treatment. Consequently, trans people of sex reassignment therapy, the right to who do not wish for sex reassignment health assures this, while those who do cannot be forced to undergo such a pro- not are also fully protected by this right. cedure. Since the requirement of sex re- assignment therapy or surgery for legal Ignatius Yordan Nugraha is specialized in gender change has the impact of forcing international human rights law and has a unwilling trans people to undergo non- particular interest in LGBT rights, the right consensual treatment, this constitutes a to health, and the right to non-discrimina- breach on the right to be free from non- tion. He is currently an intern representing

50 LGBTQ POLICY JOURNAL Human Rights Now in the 31st session of Program, 2013): 23. 6. Balzer and Hutta, 26-45; “Discriminatory the United Nations Human Rights Coun- Laws and Practices and Acts of Violence,” cil. Nugraha originally comes from Indone- 20-39; see also Darryl B. Hill, “Gender- sia and is an alumnus of Canisius College ism, Transphobia, and Gender Bashing: A High School in Jakarta. He obtained his Framework for Interpreting Anti-Transgen- master’s degree in public international law der Violence,” A Multicultural Approach for at Leiden University and his bachelor’s de- Understanding and Dealing with Violence: gree in international and European law A Handbook for Psychologists and Educa- atthe University of Groningen. tors, eds. Barbara C. Wallace and Robert T. Carter (Thousand Oaks: Sage Publishing, ENDNOTES 2003): 113-114. 7. Balzer, Carsten, and Carla LaGata, 1. Whittle, Stephen, et al., Transgender Eu- “Human Rights,” TSQ: Transgender Studies rostudy: Legal Survey and Focus on the Trans- Quarterly Vol. 1 (Chapel Hill, North Caroli- gender Experience and Health Care (Brussels, na: Duke University Press, 2014): 100. Belgium: ILGA Europe, 2008): 53-56. 8. Human Rights Watch, Hatred in the Hall- 2. Lucas Waldron, “Sexual Reassignment ways: Violence and Discrimination Against Surgeries Are Anything But Optional,” The Lesbian, Gay,Bisexual, and Transgender Huffington Post, 15 March 15 2013; Gehi, Students in U.S. Schools (New York: Human Pooja S. and Gabriel Arkles, “Unraveling Rights Watch): 39-40. Injustice: Race and Class Impact of Medic- 9. Institute of Medicine, 61-67. aid Exclusions of Transition-Related Health 10. Coleman E., et al., “Standards of Care Care for Transgender People,” Sexuality for the Health of Transsexual, Transgender, Research & Social Policy Journal of NSRC Vol. and Gender-Nonconforming People, Ver- 4 (New York: Springer, 2007): 7-35; Dar- sion 7,” International Journal of Transgende- ren Rossenblum, ““Trapped” in Sing Sing: rism Vol. 13(Abingdon, England: Routledge, Transgendered Prisoners Caught in the 2011): 168. Gender Binarism,” Michigan Journal of Gen- 11. Ibid. der and Law Vol. 6 (Ann Arbor, Michigan: 12. Ibid. University of Michigan Press, 2000): 543. 13. “International Statistical Classification 3. See Balzer, Carsten, and Jan Simon Hutta, of Diseases and Related Health Problems Transrespect versus Transphobia Worldwide: 10th Revision (ICD-10),” World Health A Comparative Review of the Human-rights Organization, 2010; Fraser, Lin, et al., “Rec- Situation of Gender-variant/Trans People ommendations for Revision of the DSM (: Transgender Europe, 2012): 70-76; Diagnosis of Gender Identity Disorder in see also “Discriminatory Laws and Practices Adults,” International Journal of Transgende- and Acts of Violence Against Individuals rism Vol. 12 (Abingdon, England: Taylor and Based on Their Sexual Orientation and Francis, 2010): 80-85. Gender Identity: Report of the United 14. Ibid; see also Hoshiai, Masahiko, et al., Nations High Commissioner for Human “Psychiatric Comorbidity Among Patients Rights” A/HRC/19/41/40-73, 17 November with Gender Identity Disorder,” Psychiatry 2011. and Clinical Neurosciences Vol. 64 (New 4. Institute of Medicine, The Health of Les- York: Wiley, 2010): 514-519. bian, Gay, Bisexual, and Transgender People: 15. Ibid. Building a Foundation for Better Understand- 16. “Position Statement on Access to Care ing (Washington, DC: National Academies for Transgender and Gender Variant Indi- Press, 2011): 75. viduals,” American Psychological Associa- 5. United Nations Development Program, tion, July 2012, Transgender Health and Human Rights 17. Coleman et al.; see also Arlene Istar Lev, (New York: United Nations Development

VOLUME VI 2015–2016 51 Transgender Emergence: Therapeutic Guide- 29. Ibid. lines for Working with Gender-Variant People 30. Ibid, 33. and Their Families (New York: Routledge, 31. Ibid. 2009): 41. 32. Ibid,12. 18. Institute of Medicine, 170; For a review 33. See Grover, Anand, Brian Citro, and of this study, see Gijs, Luk, and Anne Mihir Mankad, “The Consequences of Brewaeys, “Surgical Treatment of Gender Failure”; and Coleman E., et al., “Standards Dysphoria in Adults and Adolescents: of Care for the Health of Transsexual, Recent Developments, Effectiveness, and Transgender, and Gender-Nonconforming Challenges,” Annual Review of Sex Research People, Version 7,” Vo. 18 (Abingdon, England: Taylor and 34. ICESCR, “General Comment No. 14,” Francis, 2007): 178-224. 12(b). 19. Smith Yolanda L., et al., “Sex Reassign- 35. Ibid, 33; see also ICESCR, “General Com- ment: Outcomes and Predictors of Treat- ment No. 3: The Nature of States Parties’ ment for Adolescent and Adult Transsex- Obligations,” 1990: 9; John Tobin, The Right uals,” Psychological Medicine Vol. 35, No. 1 to Health in International Law (New York: (Cambridge: Cambridge University Press, Oxford University Press, 2012): 233. 2005): 89-99. 36. ICESCR, “General Comment No. 3.” 20. Heylens, Gunter, et al., “Effects of 37. ICESCR, “General Comment No. 14,” 47. Different Steps in Gender Reassignment 38. L. v. Lithuania, 27527/03 (2007), 57-58, Therapy on Psychopathology: A Prospective 71. Study of Persons with a Gender Identity 39. Ibid, 59. Disorder,” Journal of Sex Medicine Vol. 11 40. UN General Assembly, “Question of (New York: Wiley, 2014): 119-126. Torture and Other Cruel, Inhuman or 21. Grover, Anand, Brian Citro, and Mihir Degrading Treatment or Punishment—In- Mankad, “The Consequences of Failure,” terim Report of the Special Rapporteur,” Advancing the Human Right to Health, eds. A/56/156 (3 July 2001: 24. Zuniga, José M., Stephen P. Marks, and 41. For the situation in the US, see Spade, Lawrence O. Gostin (Oxford University 736-737. Press: Oxford, 2013): 431, referring to Amer- 42 California Health & Safety Code, § ican Psychiatric Association, Diagnostic and 103426 (2014). Statistical Manual of Mental Disorders, 4th 43 Massachussets General Laws, 46, § 13(e) ed. (Washington DC: American Psychiatric (2015); North Carolina General Statute, §§ Association, 2000); Coleman, 178.. 130A-118(b)(4), (e) (2005); Arkansas Code, § 22. Ibid, 170. 20-18-307(d) (2005). 23. Ibid; Dean Spade, “Documenting Gen- 44 ICESCR, “General Comment No. 14,” 8. der,” Hastings Law Journal Vol. 59 (Hastings, California: University of California Press, 2008): 754, 24. Ibid; see also Coleman,170-171. 25. “Constitution of the World Health Or- ganization,” World Health Organization, n.d. 26. Ibid. 27. “International Covenant on Economic, Social and Cultural Rights,” OHCHR, n.d. 28. United Nations Committee on Econom- ic, Social, and Cultural Rights (ICESCR), “General Comment No. 14: The Right to the Highest Attainable Standard of Health,” 2000: 4.

52 LGBTQ POLICY JOURNAL The Forced Sterilization of Transgender and Gender Non-Conforming People in Singapore

By Vanessa Ho, Sherry Sherqueshaa, and Darius Zheng

ABSTRACT

Singapore’s current gender recognition law allows trans people to change the sex marker on their identification cards, only on the condition of full removal of re- productive organs. While some people are relatively satisfied, there are many trans and gender non-conforming people who feel frustrated, as they do not want or cannot afford to undergo a full sex reassignment surgery. This means they are left in a state where their identity documents are not aligned with their gender identity and expression. This paper intends to tease out the specific barriers and challenges that transgender and gender non-conforming people face in Singapore in relation to gender recognition.

TERMS AND DEFINITIONS term for people whose gender identity, expression, or behavior is different from For the sole purpose of this paper, we those typically associated with their as- define the terms below as such. The signed sex at birth. “Trans” is shorthand definitions presented apply here, and for “transgender.” are limited to this report. Trans man: An individual who was as- Sex reassignment surgery (SRS): Surgi- signed female at birth, but whose gen- cal procedures that change one’s body to der identity is male. better reflect a person’s gender identity. Trans woman: An individual who was This may include different procedures, assigned male at birth, but whose gen- but for the purposes of conceptual tidi- der identity is female. ness, we define SRS in this paper to the Gender non-conforming people: In- surgeries that one undergoes to qual- dividuals whose gender identities and ify to change the sex markers on their expressions are different from socie- identification cards in Singapore. For an tal expectations related to gender. For individual who is assigned male at birth, the purposes of this paper, we exclude SRS means removal of the penis and re- people who identify as trans men and construction of a vagina. For an individ- trans women in this category. Gender ual who is assigned female at birth, SRS non-conforming individuals include means removal of the uterus. genderqueer, genderfluid, non-binary, Transgender people / Trans people: A agender, and others. The list of catego-

VOLUME VI 2015–2016 53 ries here are not exhaustive—they are recognition of a person’s gender identity.” determined based on what respondents —Yogyakarta Principles indicated in their survey forms. Pre-operative people: Individuals who “Because as a person of southeast Asian identify as trans men, trans women, or heritage, I want to honor the third gender gender non-conforming, and have not status that is culturally normative to our undergone SRS at the point of the data societies and cultures before British colo- collection for this paper. However, these nialism. For example, the Bugis people had individuals have also indicated their de- a five .” sires to go through SRS in due time. —Thirty-year-old non-binary genderqueer Post-operative people: Individuals who survey respondent1 identify as trans men, trans women, or gender non-conforming, and have un- On 30 July 1971, Professor S.S. Ratnam, dergone SRS at the point of the data Associate Professor Khew Khoon Shin, collection for this paper. and R. Sundarason conducted the first Non-operative people: Individuals who male-to-female sex reassignment sur- identify as trans men, trans women, or gery (SRS) in Singapore.2 A total of 413 sex gender non-conforming, and have not reassignment surgeries were conducted undergone SRS at the point of the data in Singapore from 1971 to 1990, and be- collection for this paper. These individ- cause of this, Singapore was known in- uals have also indicated that they would ternationally for being one of the leading not be going through SRS. countries for such operations.3 In 1973, Singapore allowed post-op- INTRODUCTION erative transgender people to change the sex marker on their National Regis- “Though the movement is sometimes re- tration Identity Card (NRIC), a card that ferred to colloquially as LGBT, I excluded is used in many day-to-day activities in- transsexual and transgender individuals cluding going to the bank and signing from my study. They deal with different up for the gym.4 This policy change was laws and issues in Singapore, and gay ac- considered a progressive move, espe- tivists also do not address their concerns or cially considering this was not possible do so more as an afterthought.” —Lynette in any other country in the southeast Chua Asian region.5 In 1991, a landmark court case, Lim “Every person’s self-defined sexual orienta- Ying v. Hiok Kian Ming Eric, gave the tion and gender identity is integral to their transgender and gender non-con- personality, and is one of the most basic forming communities a reality check aspects of self-determination, dignity, and as Hiok’s marriage was nullified due freedom. No one should be forced to un- to his identity as a transgender man. dergo medical procedures, including sex Even though he had undergone the re- reassignment surgery, sterilization, or hor- quired surgeries and had changed the monal therapy, as a requirement for legal sex marker on his NRIC, his birth cer- recognition of their gender identity. No tificate still stated he was female. Birth status, such as marriage or parenthood, certificates cannot be changed, and as may be invoked as such to prevent the legal such the judge ruled that “the personal

54 LGBTQ POLICY JOURNAL particulars on a person’s identity card Some respondents to our interviews, when it was considered alone were not who have undergone sex reassignment conclusive evidence of the sex of that surgery (SRS), indicated that they are person for the purposes of marriage.”6 satisfied with this law, as it allows them However, despite this setback, in 1996, to be who they are, thus resolving their the Women’s Charter was amended to gender identity dysphoria. Further- recognize the (heterosexual) marriage more, this seems to be a rather pro- rights of a post-operative transgender gressive piece of legislation, especially person. The Women’s Charter is a leg- when compared to neighboring coun- islative act that was passed in 1961 and try Malaysia, where after a high-profile was meant to govern matters relating four-year legal battle that ended in 2014, to marriage, divorce, sex work, sex traf- cross-dressing is still considered illegal.8 ficking, and the rights of the child. The However, many transgender and relevant section of the statute reads gender non-conforming people cannot (emphasis added): afford or choose not to undergo SRS for Avoidance of marriages between a variety of reasons that will be explored in this paper. As their gender identity persons of same sex and expression do not match their legal 12. documents, this poses many problems (1) A marriage solemnized in Sin- including homelessness, unemploy- gapore or elsewhere between persons ment, discrimination, and violence. Sex who, at the date of the marriage, are work also remains a reality for many not respectively male and female shall trans women, and while it is somewhat be void. tolerated in Singapore, prejudice and vi- (2) It is hereby declared that, olence persists in the industry.9 subject to sections 5, 9, 10, 11 and 22, As such, this paper seeks to examine a marriage solemnized in Singapore or the impact of the current gender recog- elsewhere between a person who has nition laws on the lives of transgender undergone a sex re-assignment proce- and gender non-conforming people dure and any person of the opposite sex in Singapore. In particular, we aim to is and shall be deemed always to have better understand the impact of being been a valid marriage. able to change one’s sex marker on their (3) For the purpose of this sec- NRIC only on the condition of SRS and tion— the inability to change one’s birth cer- (a) the sex of any party to a mar- tificate. We do this firstly by presenting riage as stated at the time of the mar- findings from our survey that illustrate riage in his or her identity card issued the diversity of the trans and gender under the National Registration Act non-conforming communities in Sin- gapore, as well as their opinions on the (Cap. 201) shall be prima facie evi- current gender recognition laws. We dence of the sex of the party; and then move on to analyzing the barriers (b) a person who has undergone a to SRS for people who want to undergo sex re-assignment procedure shall be the procedure, and the difficulties that identified as being of the sex to which people who do not wish to undergo SRS the person has been re-assigned.⁷ face. We conclude by presenting our

VOLUME VI 2015–2016 55 thoughts for a more inclusive future. given an option to have their real names published in this report, remain anony- METHODOLOGY mous, or adopt a pseudo-name to attri- bute to what they have shared. A final Survey follow up was conducted via email and The team conducted a survey from 4 Whatsapp in February 2016 with the to 22 of December 2015 to find out the focus group respondents, and twelve in- views of the transgender and gender dividuals responded. non-conforming communities. This was a follow-up to the pilot, which was Results previously circulated by Project X in May 2015. The more significant survey ques- The survey received an initial total of tions center on respondents’ gender 283 responses. Inclusively, 249 valid sur- identities, whether they have gone for vey responses were compiled and used SRS, what sex marker they would prefer for the analysis below—thirty-four of to be stated on their identity cards and the responses were invalid for multiple birth certificates, and a remark column reasons, which included incomplete to elaborate on the reasons. There were information and foreign participation. a total of seven questions in the survey. Out of the valid survey responses, 51.6 For each of the questions, participants percent of the respondents were indi- were allowed to fill in their responses viduals aged twenty-five and below. in the open-ended column if any of the The survey results below are classified options did not accurately reflect their according to their current status in rela- identities and opinions. tion to SRS, whether they are pre-oper- The survey was a form, which ative, post-operative, non-operative, or was distributed online via LGBTQ com- undecided. Four of these charts reflect munity organizations, as well as per- the choices made for their preferred sex sonal contacts. The decision to use the markers on their identity cards, while Google form was based on the ease of the remaining four reflect their pre- distribution, but more importantly, it ferred sex markers on their birth certif- allowed survey respondents the option icates. There are seven different groups to remain anonymous, thus reassuring of individuals in each chart: trans men, individuals who may be worried about trans women, genderqueer, non-binary, being outed. Many community orga- agender, genderfluid, and all others (see nizations shared a link to the survey Table 1). Within these groups, for the through their online platforms. Assis- purpose of this report, the choices of in- tance was rendered to individuals who dividuals for their preferred sex markers approached us and were not well-versed are also categorized into “self-identified” in technology. (preferred sex marker as opposite of their The team also organized eight focus assigned sex at birth, strictly either male group discussions from the 14 to 23 De- or female), “assigned at birth” (preferred cember 2015 to follow up with survey sex marker is the same their assigned sex respondents on their answers. Twen- at birth, strictly either male or female), ty-one individuals participated in the “no sex marker required,” “third gender,” focus groups, and each of them were and “x.”

56 LGBTQ POLICY JOURNAL TABLE 1

Percentage of Number of total Gender Identity Respondents Respondents

Transgender Trans Woman 93 37.4%

Trans Man 80 32.2%

Gender non-conforming Genderqueer 20 8.0%

Genderfluid 13 5.2%

Non-binary 12 4.8%

Agender 7 2.8%

Others 24 9.6%

Total 249 100%

On a macro level, responses are fairly SURVEY FINDINGS concentrated into two main subgroups, namely trans men and trans women. In In summary, a clear majority exists these two subgroups 23.1 percent are among the transgender and gender non-operative, 49.7 percent are pre-op- non-conforming communities who erative, 4.1 percent are undecided, and would like to be able to self-identify on 23.1 percent are post-operative. their identification documents. That In the rest of the subgroups (gender- said, as can be seen in Figures 1a and 1b, queer, non-binary, genderfluid, agender, there are more individuals who would and others)—with the exception of one like to self-identify on their identifica- individual who has undergone SRS—the tion card (65.6 percent), as opposed to on rest of the respondents have all not gone their birth certificate (50.8 percent). Ad- through with the surgery. Although ditionally, 18.2 percent of total respon- responses as to whether they will go dents indicated they would like to have through SRS are mixed, 81.1 percent third gender on their identification card of the individuals in these subgroups and 27.4 percent of total respondents have expressed they have no plans to go said they would like to have their sex as- through SRS. This is something we will signed at birth on their birth certificate. discuss later. The charts on the following pages will break down these results according to the various subgroups in order to tease out the specificities of each community.

VOLUME VI 2015–2016 57 FIGURE 1A

FIGURE 1B

58 LGBTQ POLICY JOURNAL Preferred Sex Markers on up for loyalty card, and so on. As such, Identity Cards it is of utmost importance that one is comfortable with the way they are rep- Every Singaporean owns an identifica- resented on their IC. The charts that fol- tion card (IC) from the age of twelve. low illustrate the desires of the different Cards are used for numerous things, groups with regard to what sex marker such as registering for school, applying they would like on their IC. for a job, reporting to the police, signing

FIGURE 2.1 Post-operative Transgender and Gender Non-conforming Individuals

From Figure 2.1, we can see that out of if people see you are a female and your all the respondents, 20 percent of trans NRIC is stated male. It will have ad- men and 23.7 percent of trans women ministrative problems, and lead to dis- have undergone SRS. There was just crimination in job hunting.”10 Another one person who identified as “others” respondent, a thirty-two-year-old trans who has undergone SRS. Of all post-op- man highlighted that “I do not want to erative individuals, 95 percent reflected be singled out by my gender marker on they would like to be able to self-iden- my IC or birth certificate. I would like tify on their IC. To explain their choice, to have the option of ‘coming out’ when a thirty-seven-year-old trans woman I’m comfortable to.”11 wrote, “I do not wish to raise eyebrows

VOLUME VI 2015–2016 59 FIGURE 2.2 Pre-operative Transgender and Gender Non-conforming Individual

From Figure 2.2, we can see that of all tified in their actions because my the respondents, 50 percent of trans legal documents still stated “fe- men, 47.3 percent of trans women, and male.” If I were not yet ready to 7.8 percent among all others are pre-op- commit suicide . . . I would have erative. Pre-operative individuals make jumped off the tallest story of up the majority of respondents in this my HDB [Housing Development survey, and 80.4 percent of them chose Board] building the moment I “self-identified” as their preferred sex got home. I was given neither markers on their identification cards. help nor support.” —Twenty- In the next section, we will spend more two-year-old pre-operative trans time exploring the views of pre-opera- man12 tive individuals; however, suffice it to say now that being unable to have one’s Of the pre-operative individuals, 11.3 gender identity reflected on official -doc percent would like to have third gender, uments can have dire consequences. 5.2 percent would like to have their sex assigned at birth, and 3.1 percent would “When I was admitted into like to have no sex markers on their iden- IMH on the grounds of suicide tification cards. Here are some quotes risk (due to distress over gender from people who chose third gender: dysphoria), I was placed into the women’s ward and treated as “I choose third gender because a woman, despite the hospital I feel that I’m different in [a] staff having been informed of unique way, so I should be ad- my male gender identity. The dressed as how I feel I am.” entire ordeal was tailor-made to —Twenty-four-year-old pre-op- worsen my dysphoria, and yet erative trans woman13 the staff asserted they were jus-

60 LGBTQ POLICY JOURNAL “It’s easier to fight for a ruling of third gender than to change our gender on the NRIC without having to go through surgery.” —Thirty-one-year-old pre-operative trans woman14

FIGURE 2.3A Non-operative Transgender and Gender Non-conforming Individuals

FIGURE 2.3B

VOLUME VI 2015–2016 61 Of all the respondents, 30 percent of I don’t want to lie to the society, trans men, 29 percent of trans women, my family and friends.” —Nine- and 90.9 percent of all others are teen-year-old trans woman15 non-operative. In other words, they have no plans to undergo SRS. From “Because I identify as a man.” — Figure 2.3a, we can see that for this par- Twenty-year-old trans man16 ticular group of individuals, there are a variety of choices made across the seven The second-most popular choice made available categories. That said, there is was to have “third gender” on their IC still a clear majority, as can be seen from (29.8 percent). An interesting thing to Figure 2.3b—43 percent of non-opera- note is that all agender individuals sur- tive individuals would like to self-iden- veyed have no plans to undergo surgery, tify for the sex marker on their IC: thus the lack of response as shown in Figures 2.1, 2.2, and 2.4.17 This is some- “I want to be a female because I thing we will explore further in the wanna be my own true identity. “Limitation 5” section.

FIGURE 2.4 Individuals who were still undecided on whether to go for SRS

This category was made for respondents 57.9 percent are gender non-conform- who have not undergone SRS and are ing individuals (see Figure 2.4). undecided due to various limitations, Preferred Sex Markers on Birth which will be elaborated on in the next section. They make up 7.6 percent of the Certificates total number of respondents surveyed. Birth certificates, while used less than Of the individuals who are unde- ICs in day-to-day activities, are still im- cided, 26.3 percent of them are trans portant in occasions like applying for women, 15.8 percent are trans men, and an IC, marriage, having or adopting a

62 LGBTQ POLICY JOURNAL child, and immigration. It is important not be seen as less important and as that one is comfortable presenting such such, we dedicated equal weight to the documents when required to. The right following questions.18 to amend one’s birth certificate should

FIGURE 3.1 Post-operative Transgender and Gender Non-conforming Individuals

Of all post-operative transgender in- this were not the case in Singa- dividuals, 65.9 percent would like to pore, then I wouldn’t mind that self-identify for the sex marker on their my birth cert[ificate] still states birth certificates (see Figure 3.1). female as a way to celebrate my identity as a transmale and my “It will definitely make me feel journey through transition.” equal to the other people, and —Twenty-two-year-old trans showing my birth certificate man20 would not be an issue.” —Twen- ty-five-year-old trans woman19 This is significant, as according to Fig- ure 2.1, 95 percent of post-operative “I feel that Singapore still has transgender people would like to be gender identity discrimination. self-identified on their identification If someone were to see that my cards. In other words, fewer post-opera- documents do not match the tive trans individuals want to self-iden- gender I represent and identify tify for the sex marker on their birth with, I will be discriminated certificates. against, whether verbally in pub- Of transgender and gender non-con- lic or in private. I feel it would forming individuals, 24.4 percent would affect my workplace standing like to have their sex assigned at birth and other’s opinions of me. If reflected. One twenty-three-year-old

VOLUME VI 2015–2016 63 post-operative trans man shared that “I since technically that’s what I was born don’t need to change birth certificate[s] as.”21

FIGURE 3.2 Pre-operative Transgender and Gender Non-conforming Individuals

From Figure 3.2, we can see that 66.7 “[My] birth certificate can remain percent of the pre-operative transgen- as it is (male), just a memory of der and gender non-conforming com- who I was.” —Thirty-five-year- munity prefer to self-identify for their old trans woman22 sex markers on their birth certificates, while 19.8 percent would like to keep “I can’t change my past, but I their sex assigned at birth indicated on can change my future . . . That their birth certificates. This is a marked by accepting ourselves, one day difference from what they prefer to have others will accept us too, for who on their ICs (see Figure 2.2), with a 13.7 we are.” —Sixteen-year-old trans percentage point drop in respondents man23 who would like to be self-identified on their identification cards.

64 LGBTQ POLICY JOURNAL FIGURE 3.3A Non-operative Transgender and Gender Non-conforming Individuals

FIGURE 3.3B

Similar to Figures 2.3a and 2.3b, non-op- like to self-identify came in a close sec- erative transgender people vary widely ond (32 percent). The least number in their opinions as to what should be of people chose to have “X” as the sex stated in their birth certificates (see Fig- marker on their birth certificate (2 per- ure 3.3a). From Figure 3.3b, we can see cent). that most people would like their birth certificate to reflect their sex assigned at birth (35 percent), but those who would

VOLUME VI 2015–2016 65 FIGURE 3.4 Individuals who were still undecided whether to go for SRS

Finally, as can be seen in Figure 3.4, ex- spectrum of possibilities. For some, the cept for agender individuals (none of current gender recognition law is suffi- whom falls under this category), the cient. other six categories of transgender and gender non-conforming individuals “I did SRS to change my gender made their choices between self-iden- marker on my identity card. Of tified (35 percent), assigned at birth (35 course, doing SRS is also to re- percent), and third gender” (25 percent). duce inconveniences such as There was one person who opted for “X” binding, and awkward situations as their sex marker. such as having to go swimming. Wearing clothes are also much ANALYSIS easier now. It’s a great relief.” — Kieran, a thirty-three-year-old It is clear from the survey results that post-operative trans man24 even while there are distinctive ma- jorities, there are still many differing “Yes, I would still go through SRS opinions in the community. There are a [even if there is no requirement variety of views, all of which should be to do so]. It is more than just a respected. From our findings, it is clear documentation record. It is the that it is important for transgender and life and body I want to live in.” gender non-conforming individuals to —Benson, a thirty-one-year-old be able to self-identify on their docu- pre-operative trans man25 ments. Self-identify not just in the sense of how we have been using the term, but “The operation [SRS] wasn’t a also in the sense they would like to be means to an end. If that is what able to define themselves from a broad it takes to be a woman, I want

66 LGBTQ POLICY JOURNAL to go through it. I would still go “Pending [a] money drop from for SRS even if [my] IC can be sky.”—Thirty-five-year old changed without SRS. Physical- pre-operative genderfluid indi- ity has to match up for legality.” vidual29 —Natalyn, a forty-seven-year-old post-operative trans woman26 “As the cost for bottom surgery can involve a huge amount of However, this raises the question as money, it’s good to be able to to the availability and accessibility of change the identity card before trans-specific healthcare, as well as the bottom surgery. However, I will obstacles one has to face in order to un- still do it after I feel that my fi- dergo SRS. For many transgender indi- nancial situation allows me to do viduals, the decision to undergo SRS or so. Because it’s awesome to have not lies more than just in a change of sex the transition completed fully.” marker on their identity cards—it ulti- —Nat, a twenty-one-year-old mately boils down to other factors, such pre-operative trans man30 as family, religion, and surgical fears. These factors may severely impede both Nat raises an important point, which is abilities, and desires, of individuals to that SRS is a long-term goal for some undergo SRS. Here we narrow down transgender people. According to the and focus on five limitations to SRS that Asia Pacific Transgender Network, “If transgender and gender non-conform- legal gender recognition requires such ing people face. medical steps, trans people can be forced to spend many years, or all of their lives, Limitation 1: Financial Concerns with no legal verification of their gender Many of those surveyed or interviewed identity.”31 identified financial considerations as Another overarching theme reflected one of their topmost concerns when in the data is that of family depen- deciding to go through SRS. dency, where it is a norm in Singapore for younger members of the family to “I just really don’t like the idea of be economically dependent on older paying a few thousand dollars to members of the family. This is usually remove healthy internal organs the case until younger members of the that are part of the regular func- family graduate, get married, and buy tioning and upkeep of my body.” their own house. For twenty-five-year- —Twenty-six-year-old trans old post-operative trans woman Jenn, man, undecided on whether or the hefty cost of SRS is compounded not to go through SRS27 if the threat of being kicked out of her parent’s place becomes real. Renting a “Can’t afford. Unsupportive fam- room is rare, as it is a huge cost given ily. Still studying. Can’t even use the high standard of living in Singapore. my hard-earned CPF (Central Secondly, the current policies in Singa- Provident Fund) or Medisave.” pore only permit single individuals to —Twenty-four-year-old pre-op- purchase their own flats from the age of erative trans woman28 thirty-five, unless they buy with their

VOLUME VI 2015–2016 67 parents, or if they are orphaned.32 In family members being economically other words, only married heterosexual dependent on older family members couples are eligible to buy built-to-or- and having to bear the consequences if der (BTO) government housing regard- anything unfavorable happens. Some, less of age, so long as they are registered like twenty-fiveyear-old pre-operative with the Registry of Marriages (ROM) in trans woman Jason, have previously Singapore. been threatened by parents that she will Another topic touched upon by one get chased out of the house if she goes of the respondents is the use of the through SRS. For Jason, this fear is very Central Provident Fund (CPF) and Me- real. In fact, it constituted her top-most disave to pay for SRS. The CPF is a so- consideration in her decision-making cial security savings plan for Singapore process of whether or not to go through citizens, where a certain percentage of SRS.33 each individual’s salary is deducted from In the workplace, individuals who the gross monthly salary and put into a are considering undergoing SRS are also special government account, with sim- at a disadvantage, both in terms of get- ilar contribution from the individual’s ting a job and surviving in the workplace employer. Part of this money is chan- environment. Many respondents were neled into Medisave, a medical savings concerned and feared disclosing their scheme which helps individuals put trans identities to coworkers and bosses aside part of their income to meet their alike. For Vittorio, she feels that it is dif- future personal or immediate family’s ficult to gain coworkers’ acceptance for hospitalization, day surgery, and certain her decision to go through with SRS, outpatient expenses. The savings can be even if her superior gives her permission withdrawn to pay hospital bills of the to do so. According to Vittorio, her co- account holder and their immediate workers have already started to “see her family members. However, the Medis- as a freak” and have even gossiped and ave account is unable to be used to pay formulated untrue assumptions about for fees for SRS. Furthermore, Medisave her—all based on her looks due to her is only for hospitalization costs accrued ongoing hormonal therapy.34 For oth- in Singapore. ers, like twenty-three-year-old non-op- erative trans man Tiky, being bound to Limitation 2: Concerns from the public service sector means his ca- People Around Transgender reer could be in jeopardy if he undergoes Individuals SRS. Tiky does not feel the public service favors, in any way, transgender individ- Another important concern affecting uals—and that may affect his chances of individuals’ decisions to have SRS is a promotion, as well as increase the risk the possible negative responses from of paying for liquidated damages should immediate and extended family mem- the scholarship be revoked.35 Thus, for bers, friends, schoolmates, colleagues, these individuals, declaring their desires and even spouses. This discovery is not to go through SRS may have very devas- surprising, but warrants some reflec- tating effects on their lives. tion, given what we have talked about For others, like trans man Kieran, in the previous section about younger ithe nfluence of people around him is so

68 LGBTQ POLICY JOURNAL great that considerations to go through Limitation 3: Fears Related to SRS only began to materialize after his Surgery mother—who opposed his decision— passed away. To add on, Kieran’s ex-girl- According to the World Professional friend broke up with him because of this Association for Transgender Health very desire to undergo SRS.36 (WPATH), “Transsexual, transgen- Other consequences that transgen- der, and gender-nonconforming peo- der individuals have to face, include ple need health care throughout their possible counter-proposals. One such lives.”42 However, the full range of re- account given was by nineteen-year- sources required is not readily available old pre-operative trans woman Jaclyn, in Singapore since the only SRS-specific whose father—while telling her to “wait facility in one of the local hospitals was for ten years before deciding whether shut down in 2001. Many who have to transition”—simultaneously brought intentions to go through SRS have ex- her around to different psychiatrists pressed the most reliable and inexpen- to determine if anything was mentally sive venue to undergo the surgery would wrong with his child.37 Similarly, Cass, be in Thailand. Some, however, would an eighteen-year-old genderfluid indi- have preferred to do the surgery in Sin- vidual was asked to go see a “bomoh,” gapore—comparing the health care sys- or a Malay shaman, for exorcism when tems between both countries. For some, they tried to come out as gay to their like a thirty-nine-year-old trans man, parents.38 Parents’ influence can never the shutdown of the facility led him to and should not be undermined. Ja- decide to not undergo SRS, because of son’s parents were similarly insistent the precise lack of such healthcare fa- that Jason’s desire to undergo SRS is cilities in Singapore.43 One respondent merely “a phase,” causing Jason to also made a connection between the lack of not attend family gatherings the past resources with the current gender rec- several years for fear of being pressured ognition laws: into a cis-heterosexual marriage.39 In the words of a twenty-four-year-old “Trans care in Singapore is lack- non-operative trans man, “I really think ing in many, many ways, [and] that any change should start from the this is among one of them. Es- family level. If parents or siblings could pecially when any form of actual be more understanding of this situation, medical care is so difficult for it would help so much.”40 many trans people to obtain in For others, like thirty-year-old Singapore, the requirements for pre-operative trans woman Amanda, changing gender in official docu- there is also a fear of violence—as the ments are made even more ridic- closest friends she currently has are also ulous.” —Twenty-three-year-old those who call transgender individual non-operative trans man44 names, as well as intend to inflict harm onto them. Amanda has not come out There are also some others, like one to them yet.41 twenty-two-year-old trans woman who is undecided on whether to go through SRS because she “do[es] not agree with

VOLUME VI 2015–2016 69 the idea that one must go through so in Buddhist scripture talks about oppos- much pain, in body, and emotionally for ing the idea of SRS, his mom speaks to the rest of your life just to be who you him about “attaching himself to his gen- want to be.”45 der” all the time. This idea of non-at- tachment forms a foundation of the Limitation 4: Faith Community Buddhist faith, though, interestingly, One of the greatest oppositions to one of the Buddhist deities Guan Yin, the decriminalization of homosexual- or the Goddess of Mercy, is sometimes ity comes from Christian and Islamic thought of as androgynous or transgen- groups. Of significance lately is the der.51 WearWhite Campaign, which “is an in- Limitation 5: Non-binary/Fluid formal grassroots movement” with the purpose of “reminding not to Identities participate in” Pink Dot, Singapore’s Of all respondents, 30.4 percent iden- annual LGBTQ event.46 Numerous tify as genderqueer, genderfluid, agen- churches in Singapore have also encour- der, non-binary, and others (excluding aged their members to wear white on trans men and trans women commu- Pink Dot, an event where participants nities). Of this group, 90.9 percent of turn up in pink.47 individuals have also indicated they are Religion, or one’s faith community, non-operative. Many gender non-con- has a strong presence in Singapore. forming individuals feel that gender in One’s faith can have a role affecting de- itself is a social construct and defined by cisions to undergo SRS. For example, a humans ourselves. To be “agender,” for forty-two-year-old pre-operative trans instance, is to be “without gender.” As woman who indicated that she would such, participants may not feel the need like her sex assigned at birth on her to undergo SRS, as that means adopting birth certificate explained that “I believe either gender for themselves. I should not forget how I was born, and as a Muslim I would want to be buried “I do not like to be placed in a as a man following my religious prac- specific gender and I don’t feel tice.”48 It is a practice where they are like I’m fully a girl or a boy. And to be buried without modifications to sometimes I feel like I’m a girl, their bodies.49 Furthermore, there is an- and at times a boy. Most days ecdotal evidence of trans people being I feel gender neutral/non-bi- turned away from burial services, leav- nary and I hope that I could be ing them discriminated even in death.50 accepted as myself and not be Another factor could be social pres- forced into the gender binary sure stemming from coworkers’, fami- because gender is a spectrum.” lies’, and spouses’ religious affiliations —Sixteen-year-old non-opera- indirectly affecting a transgender in- tive genderfluid individual52 dividuals’ choices to undergo SRS. For instance, for nineteen-year-old pre-op- For others, they desire physically alter- erative trans man Alex, his entire family ing their bodies, but also express there (including Alex) identifies as Buddhists. isn’t a strong desire for them to choose Even though, according to Alex, nothing to undergo SRS. Responses for many in

70 LGBTQ POLICY JOURNAL these groups of individuals as to their the truth and I recognize that I desired gender identities on their ICs will always be a trans woman, are mixed, with some preferring to be and not a woman.” —Tricia, a able to self-identify on their documents sixty-year-old non-operative and others being comfortable with their trans woman56 sex assigned at birth. It is of interest to note the emergence of a “third gender” There were also individuals who had or the request for removal of sex mark- stronger feelings about this and feel that ers—of which this option appears more SRS is in some ways, unnecessary and a for such groups of individuals who are form of state coercion. gender non-conforming, as opposed to the trans men and trans women com- “I do not want to undergo forced munities. For these groups of individ- sterilisation just to have the uals, it is unfair to request them to go gender marker on my official through SRS to indicate their preferred documents changed.” —Twen- gender identity on their cards. ty-three-year-old non-operative trans man57 “It is how I identify my gender identity to be and has no rela- CONCLUSION tionship to any surgery.” —For- ty-year-old non-operative trans For many, changing the sex marker on man53 their ICs means more than mere admin- istrative ease. To have control over how “I have no plans for any surgery one is represented gives many a sense of because I am not exactly youn, security, affirmation, and acknowledge- and besides, it is just a glorified ment. This would also create greater plastic surgery procedure be- ease in other areas of their lives, such as cause it is not going to give me job applications, visitations to hospitals, a womb or the capacity to bear and the checking of travel documents at children.” —Fifty-eight-year-old airport departure gates. For some, there non-operative trans woman54 would be an added level of psychologi- cal security, as they would be free to be “I do not think having a penis who they are without contradictions makes me any less of a woman.” and without judgement. —Jaclyn, a nineteen-year-old It is heartening that the Singa- non-operative trans woman55 pore government allows individuals to change the sex markers on their iden- “I don’t see SRS as important. It’s tity cards, though only on the condition true that there was a time I con- they have undergone SRS. However, as sidered SRS—I thought that it shown in the above sections, not only was the only way to be complete. are there material limitations and chal- But SRS is essentially the re- lenges to go through the operation it- construction of something fake, self, for some who don’t identify as one which is not necessary, especially gender, the idea of SRS does not apply. when my life is about living out The government needs to take this into

VOLUME VI 2015–2016 71 account when drafting such future pol- culture, victim blaming, and slut sham- icies. This is a complex topic of which ing. Simultaneously, she was a curator there exists a vast diversity of views, even at Post-Museum, where she organized a within the communities itself. As one series of talks and events to examine sex, twenty-six-year-old pre-operative trans gender, and sexuality in Singapore. Ho was woman wrote, “At the end of the day, awarded the Young Activist Award by the if people don’t accept trans people, the Association of Women for Action and Re- discrimination and violence will happen search (AWARE) in 2014 for her work on even if our IC states F, M, or X.”58 On the various human rights issues. other hand, a seventeen-year-old gen- Ho graduated with a bachelor of science derfluid individual wrote that “Unless it in economics from the University of War- is formally recognized, gender non-con- wick, and a master of arts in gender, so- formity and trans people will be taken as ciety, and representation from University a joke.”59 Both views reflect the need to College London. She is also a part-time have more platforms and discussions in associate lecturer at the Singapore Insti- society and with policymakers in order tute of Management University (UniSIM), to ensure that such laws of forced ster- teaching modules in film and gender the- ilization can be amended, and more im- ories. Ho holds the view that if people can portantly, that Singaporeans, no matter speak about sex, gender, and sexuality in who they are, have a voice and have the open and in non-judgmental ways, society space to be who they want to be. will become a safer place for everyone.

Vanessa Ho is the project director of Proj- Sherry Sherqueshaa is a former transgen- ect X, a local non-governmental organi- der sex worker turned activist. As a Mus- zation that advocates for the rights of sex lim, she also aims to inspire the transgender workers of all sexual orientations and gen- community. She joined local non-govern- der identities. This is a full-time position mental organization Project X initially she has held since 2011, and one where she as a youth program coordinator, work- is responsible for documenting and report- ing closely with trans women via events ing on the various human rights abuses sex and workshops in the community center. workers face. She has written and spoken Having found deep interest through her on sex work, , rape cul- involvement in plenaries, interviews, and ture, and LGBTQ rights in Singapore. interactions with academics and others, Previously, Ho was part of Sayoni, a Sherqueshaa then moved on to be the or- queer women’s organization, and was a ganization’s researcher and writer, champi- volunteer for its Convention for the Elim- oning and advocating for the rights of sex ination of all forms of Discrimination workers in Singapore. against Women (CEDAW) reporting team. Sherqueshaa is currently with the Na- As part of her assignment, she traveled to tional University of Singapore (NUS) as the United Nations (UN) in New York to a research facilitator and consultant, as- present a shadow report on queer women’s signed to be a peer leader. Her role is to ex- issues for Singapore’s session. ecute a campaign called the Project Stiletto Ho was also one of the key organiz- and a survey that address issues concerning ers of SlutWalk Singapore, a movement transgender sex workers’ health, sex reas- that aimed to raise awareness about rape signment, insurance, and social support.

72 LGBTQ POLICY JOURNAL A year and still counting, being with company GayStarNews as its Asia-Pacific Project X has taught and allowed Sherque- correspondent. shaa to educate and advocate for changes Zheng is similarly active in transgender in Singapore’s marginalized community. advocacy work. As part of Free Community Being frequently exposed to the issues and Church, Singapore’s only LGBTQ-inclu- concerns of sex workers not only motivates sive church, he helms a team to organize her but also pushes her to be optimistic. monthly donation drives for the T Proj- Sherqueshaa has attended human rights ect, Singapore’s only transgender shelter. conferences and seminars in Chiang Mai, This collaboration with Project X’s Va- Taipei, and Kuala Lumpur, where she nessa Ho and Sherry Sherqueshaa for the gained experiences and learned various LGBTQ Policy Journal is also in part to advocacy strategies. She believes that with raise awareness for transgender issues on small steps, effort and perseverance, hope a global scale. will translate into reality. Sherqueshaa Zheng is also a personal advocate for also feels that if one cannot accept trans- LGBTQ rights. In 2013, he was awarded gender people and sex workers, the least a grant by Manila-based B-Change Foun- they can do is give respect like they would dation, supported by the UN Development to any other person. Program, to produce his own coming-out film, which was subsequently featured on Darius Zheng is an LGBTQ activist, local and international media outlets. whose work started in 2012 when joining He was also invited by the Beijing LGBT the steering committee of Pink Dot SG, Center and the organizing the nation’s annual de facto (HRC) to talk about the work he has done. LGBTQ rally (27,000 supporters attended Zheng was also involved in the HRC’s in its seventh year in 2015), where the global advocacy efforts as a global equality LGBTQ community and allies gather at innovator, speaking at the organization’s a park dressed in pink. In his three years first Global Innovative Advocacy Sum- with Pink Dot SG, he has worked with nu- mit held in Washington, DC, in March merous community groups, students and 2016. Zheng graduated with a bachelor of youths, media, corporate and individual communication studies from Singapore’s sponsors, event ambassadors, performers, Nanyang Technological University, spe- and commercial partners. cializing in journalism, and will be em- Since late 2015, Zheng has moved on to barking on a master of arts in a human look at intra-community issues. He is cur- rights studies program at Columbia Uni- rently a volunteer para-counselor under versity in August 2016. Action for AIDS Singapore’s Pink Carpet Initiative to advise high-risk young men- ENDNOTES who-have-sex-with-men on the impor- 1. Non-binary genderqueer, interview with tance of safe sex. As part of the initiative, authors, 31 May 2015. he is also responsible for outreach efforts 2. Chan Meng Choo, “First Sur- to gay bars and clubs. As a journalist, gery,” Singapore Infopedia, 8 April 2011. Zheng regularly contributes to one of 3. “Singapore Hospital Closes Last Sex Asia’s leading LGBTQ publications, in- Change Clinic,” Fridae, 30 May 2001. 4. Soon after the independence of Singa- cluding Element Magazine, and currently pore in 1965, a National Registration Act works for international LGBTQ media was established and took effect in 1966.

VOLUME VI 2015–2016 73 This act required all Singaporeans above 17. The definition of “agender” is to be twelve years of age to register for an iden- “without gender.” As such, participants tification card; “National Registration for may not feel the need to undergo SRS, as Singapore Identity Cards Begins.” National that will be to adopt a gender. However, as Library Board, n.d. none of the participants who identified as 5. “Legal Gender Recognition—Change of agender volunteered for the focus group Gender,” Transrespect Versus Transphobia discussions, we were unable to explore this Worldwide, 2016. further. 6. Patrick Jiang “Legislating for Transgender 18. In 2008, the UN Human Rights Com- People: A Comparative Study of the Change mittee urged Ireland to “recognize the right of Legal Gender in Hong Kong, Singapore, of transgender persons to a change of gen- Japan and the United Kingdom,” Hong Kong der by permitting the issuance of new birth Journal of Legal Studies Vol. 7 (Hong Kong: certificates,” citing the rights to “privacy, University of Hong Kong Press, 2013): 31-73. equality, and recognition before the law”; 7. “Women’s Charter PART III: Solemni- “License to be Yourself: Laws and Advocacy zation of Marriages,” Singapore Statutes for Legal Gender Recognition of Trans Peo- Online, 1 January 2015; It is interesting to ple,” Open Society Foundations, 2014. note the wording in paragraph 12(3)(a). The 19. Trans woman, interview with authors, 4 initial words proposed were “conclusive December 2015. evidence” instead of “prima facie evidence,” 20. Trans man, interview with authors, 3 but the latter was used as concerns were June 2015. raised that the former “would be too rigid 21. Anonymous, interview with authors, 6 and problematic”; Parliament of Singa- December 2015. pore,” Official Reports—Parliamentary 22. Candy, interview with authors, 21 De- Debates,” 27 August 1996. cember 2015. 8. “Malaysia: Court Ruling Sets Back 23. Trans man, interview with authors, 18 Transgender Rights,” Human Rights Watch, July 2015. 8 October 2015. 24. Kieran, focus group interview with 9. Allard K. Lowenstein, International authors, 17 December 2015. Human Rights Clinic, Yale Law School, 25. Benson, e-mail interview with authors, and Project X, “’They Only Do This To 10 February 2016. Transgender Girls’: Abuses of Trasgender 26. Natalyn, focus group interview with Sex Workers in Singapore,” Project X, 19 authors, 17 December 2015. November 2015. 27. Trans man, focus group interview with 10. Anonymous, interview with authors, 25 authors, 17 December 2015. July 2015. 28. Pre-operative trans woman, interview 11. Anonymous, interview with authors, 30 with authors, 30 May 2015. May 2015. 29. Pre-operative genderfluid individual, 12. Pre-operative trans man, interview interview with authors, 22 July 2015. with authors, 3 June 2015; the HDB is the 30. Nat, e-mail interview with authors, 11 government statutory board responsible for February 2016. public housing. 31. Health Policy Project, Asia Pacific 13. Pre-operative trans woman, interview Transgender Network, and United Na- with authors, 29 May 2015. tions Development Progamme, Blueprint 14. Nadia Rzeya, interview with authors, 11 for the Provision of Comprehensive Care for December 2015. Trans People and Trans Communities in Asia 15. Halinadii, interview with authors, 7 and the Pacific (Washington, DC: Futures December 2015. Group, Health Policy Project, 2015); APTN 16. Trans man, interview with authors, 30 adds that “this is particularly true for trans May 2015. man, as creating male genitals involves

74 LGBTQ POLICY JOURNAL multiple stages of surgery; frequent techni- be bathed by a male”; Yik Koon Teh, “Mak cal difficulties and post-operative compli- Nyahs (Male Transsexuals) in Malaysia: cations mean only a small minority of trans The Influence of Culture and Religion on men have such operations.” their Identity,” The International Journal 32. More information about the eligibili- of Transgenderism Vol. 5, No. 3 (Abington, ty criteria for buying public housing—in England: Taylor and Francis, 2001). particular, the “Singles Scheme” and “Public 50 Sherry Sherqueshaa, “Reflections on Mr. Scheme”—can be found at hdb.gov. Imran’s Talk on Religious Issues Relating to 33. Jason, focus group interview with au- Sex Workers and the Transgender Commu- thors, 22 December 2015. nity,” Project X, 23 July 2015. 34. Vittorio, focus group interview with 51 James S. Fu, Mythic and Comic Aspects authors, 15 December 2015. of The Quest: Hsi-yu chi as Seen Through 35. Tiky, focus group interview with au- Don Quixote and Huckleberry Finn (Sin- thors, 23 December 2015. gapore: Singapore University Press, 1977); 36. Kieran, focus group interview with Barbara E. Reed, “The Gender Symbolism authors. of Kuan-yin Bodhisattva,” Buddhism, Sex- 37. Jaclyn, focus group interview with au- uality, and Gender, ed. Jose I. Cabezon (Al- thors, 18 December 2015. bany: State University of New York Press, 38. Cass, focus group interview with au- 1992): 159-180; Alex, focus group interview thors, 18 December 2015. with authors, 18 December 2015. 39. Jason, focus group interview with 52 Non-operative genderfluid, individual, authors. interview with authors, 14 December 2015. 40. Anonymous, interview with authors. 53 Non-operative trans man, interview with 41. Amanda, focus group interview with authors, 30 May 2015. authors, 23 December 2015. 54 Non-operative trans woman, interview 42. “Standards of Care for the Health with authors, 18 July 2015. of Transsexual, Transgender, and Gen- 55 Jaclyn, focus group interview with au- der-Non-conforming People,” World thors. Professional Association for Transgender 56 Tricia, focus group interview with au- Health, 2012. thors, 22 December 2015. 43. Trans man, interview with authors, 9 57 Non-operative trans man, interview with December 2015. authors, 29 May 2015. 44. Non-operative trans man, interview 58 Pre-operative trans man, interview with with authors, 30 May 2015. authors, 3 July 2015. 45. Trans woman, interview with authors, 3 59 Genderfluid individual, interview with July 2015. authors, 6 December 2015. 46. “#wearWHITE,” Wear White, n.d. 47. “Christians to Don White for Services as Hong Lim Park Hosts Pink Dot,” The Straits Times, 23 June 2015. 48. Pre-operative trans woman, interview with authors, 29 May 2015. 49. According to Teh, on the situation of transgender women in Malaysia, “Muslim burial rites state that only a female can bathe the body of another female—this would not include the mak nyahs even though they may had undergone the sex change operation. Mak nyahs with the sex-changed female organ could also not

VOLUME VI 2015–2016 75 “Like a Stray Dog on the Street”: Trans* Refugees Encounter Further Violence in the Cities Where They Flee

By Jennifer S. Rosenberg

ABSTRACT LGBTI refugees have historically remained invisible within larger refugee popula- tions, and systematically overlooked in international humanitarian interventions. Against this backdrop, the importance of current efforts to raise awareness of LGBTI refugees and their needs cannot be understated. At the same time, however, LGBTI refugees are not a homogenous group, and within humanitarian response, trans*-specific information and guidance remains virtually nonexistent. What little information does exist, in the form of research or policy recommendations, is often folded into broader discussions about LGBTI refugees generally. Yet, trans* refu- gees are arguably more at risk of violence than any other refugee subpopulation. Hence, as conversations around LGBTI refugees gain momentum and humanitar- ian actors, and even some host governments take steps to enhance their protection, it is crucial that policymakers pause to separately consider the experiences of trans* refugees and how to respond to the particular rights violations they face every day.¹ This article discusses the particular issues faced by trans* refugees and summarizes suggestions for responding to those issues.²

INTRODUCTION In December 2015, the United Na- tions High Commissioner for Refu- The migration of Syrian refugees into gees—the UN refugee agency—released Europe has drawn much-needed at- a report highlighting some of the protec- tention to the plight of refugees every- tion concerns facing LGBTI individuals where. Even a handful of Syrian LGBTI who have fled violence in their home refugees have been profiled in main- countries, only to encounter it again in stream media outlets, and last August places where they have sought refuge.⁴ two —one Syrian, the other The report, based on information pro- Iraqi—who had fled ISIS testified before vided by UNHCR field operations, notes the United Nations Security Council, re- how LGBTI refugees and asylum-seek- vealing their stories as part of the coun- ers face a variety of threats every day in cil’s first-ever meeting on gender and their host communities, ranging from sexual minority rights.³ persecution by authorities to abuse

76 LGBTQ POLICY JOURNAL while looking for accommodation. The Trans* refugees are arguably more at report calls for better services for LGBTI risk of violence than any other refugee refugees, and for more guidance for hu- subpopulation.⁶ They encounter vio- manitarian workers in the field, most of lence and persecution in their countries whom have little experience working of origin; this includes physical violence with LGBTI individuals. such as rape and sexual torture, as well These are positive developments. as emotional violence in the form of ver- LGBTI refugees have historically re- bal abuse and exile from their families. mained invisible in larger refugee pop- This is why many flee their home coun- ulations, and systematically overlooked tries in the first instance. But they also in international humanitarian inter- face transphobia, isolation, and extreme ventions. Against this backdrop, the violence in the places they travel to importance of current efforts to raise seeking safety and asylum. Many often awareness of LGBTI refugees and their arrive alone in foreign cities, knowing needs cannot be understated. At the no one and having nowhere to sleep. same time, however, LGBTI refugees are Typically shunned by other refugees, not a homogenous group, and within they are unable to take advantage of the humanitarian response, trans*-specific informal refugee social networks that information and guidance remains vir- are often lifelines for new arrivals, key tually nonexistent. What little informa- to learning what services exist and how tion does exist, in the form of research or where they can access basic neces- or policy recommendations, is often sities, like food and emergency shelter. folded into broader discussions about All the while, trans* refugees, who are LGBTI refugees generally.⁵ often already survivors of sexual and This tendency to subsume trans* gender-based violence, are targeted for issues into LGBTI ones is, to some ex- additional violence conducted by mem- tent understandable, on theoretical bers of the host community and fellow and practical levels—discrimination refugees. They also risk and experience against individuals of diverse sexual ori- violence when attempting to access entations and gender identities has al- mainstream refugee services, the very ways been embedded within systems of services put in place to assist refugees. power, policymaking, and service deliv- Hence, as conversations around ery, including within the humanitarian LGBTI refugees gain momentum and system. This discrimination has pro- humanitarian actors—and some host duced gaps in knowledge and service de- governments even take steps to enhance livery affecting all LGBTI refugees, gaps their protection—it is crucial policy- that are now coming to the forefront makers pause to separately consider the and rightfully starting to be addressed. experiences of trans* refugees and how Yet, this tendency to talk about all L, G, to respond to the particular rights vio- B, T, and I refugees in one breath can lations trans* refugees face every day.⁷ itself be dangerous, obscuring critical Doing so properly will require building differences between them, including the capacity and skills of agency staff to the types of rights violations they face engage trans* refugees and developing and distinctions in the appropriateness operating procedures and sample in- of interventions for each subgroup. terventions specific to trans* refugees’

VOLUME VI 2015–2016 77 needs. It will also require prioritizing Being mindful that refugees’ own and channeling funding toward tai- perspectives are essential to this en- lored programming for trans* refugees. deavor, in 2015 WRC met with trans* Proactive outreach will be essential, refugees in three cities: San Lorenzo, along with facilitating the meaningful Ecuador; Beirut, Lebanon; and Kam- participation of trans* refugees in de- pala, Uganda. Consultations were signing, implementing, and monitoring conducted through focus groups and this programming. On a broader level, individual interviews, at the option of trans* issues must be “mainstreamed” the refugee, and in a location and time throughout humanitarian response, so of their choosing.⁸ In Beirut, WRC con- trans* refugees can enjoy safe and non- ducted two transwomen-only group discriminatory access to all the services discussions, with fourteen and seven and supports to which all refugees are participants, respectively. In San Lo- entitled. renzo, WRC met with four transwomen, three of whom participated in a group TRANS* REFUGEES IN CITIES discussion hosted in a hair salon where one worked. In Kampala, WRC con- Today, nearly 60 percent of all refugees ducted two group discussions with ten (persons who cross borders fleeing con- and eight LGBTI refugees, respectively; flict or crises) seek safety in cities, rather participants were a mix of lesbian, gay, than the refugee camps we often envi- bisexual, transgender, and intersex in- sion as hubs of humanitarian assistance. dividuals who chose to meet as a group Indeed, in countries where refugees are and who were not asked to self-profile. legally able to move freely (not all na- As follow-up to these discussions in tional governments allow this), camps Kampala, individual interviews were are becoming a relic of the past. This conducted with three participants who urban migration is causing nothing less self-identified as transwomen and an- than a monumental shift in how hu- other who self-identified as being along manitarian actors—especially UNHCR the transgender spectrum. and its local partner organizations— Information provided by refugees must operate on the ground. was triangulated through consultations In 2014, the Women’s Refugee Com- with organizational stakeholders in each mission (WRC), with support from the city, including refugee service providers, US’s Bureau of Population, Refugees, LGBTI civil society groups, and others and Migration, embarked on a multi- with expertise serving local trans* com- year project to learn how humanitarian munities. The findings and policy rec- actors can improve their programming ommendations discussed below are a in cities. More specifically, the proj- product of these direct consultations.⁹ ect seeks to build a knowledge base around urban refugees’ exposure to SURVIVING IN THE CITY: gender-based violence (GBV), and how VIOLENCE AT EVERY TURN AND humanitarian actors can strengthen A LACK OF ACCESS TO BASIC GBV prevention and response services NECESSITIES for at-risk refugees—including trans* individuals. Trans* refugees are especially likely to

78 LGBTQ POLICY JOURNAL migrate to cities, given the risks of vio- feeling unsafe when walking around lence and social exclusion they face in certain areas of the city, they do not, on camp settings.¹⁰ Cities, in contrast to average, experience anywhere near the refugee camps, offer greater anonymity. level of daily violence encountered by They offer the potential for safe har- transwomen. This discrepancy owes to bor within a more cosmopolitan com- trans* refugees’ visibility, where their munity—or at least a better chance of dress or outward appearance breaks hiding or “passing” among strangers. traditional gender rules, as well as the Some make their way to particular cities strong transphobia that exists in many because they’ve heard, through word of host countries and refugee communi- mouth or social media, of other trans* ties, and even within LGBTI commu- refugees living there. nities. Trans* refugees also highlighted Masha, a transwoman from the that where a gender marker on their Democratic Republic of Congo, traveled identity documents does not match to Kampala following a savage beating their physical gender presentation, they in a refugee camp in northern Uganda. are especially likely to be refused a job or She came to Kampala after hearing service, or be detained by police, which about a local activist advocating for gay in turn exposes them to physical and rights there. Shilah, another Congolese sexual violence while in custody. transwoman, was raped by five men in The violence faced by trans* refugees her village in the DRC. Still bleeding ranges from verbal abuse while walking from those injuries, she fled to a ref- down the street to being denied hous- ugee camp in western Uganda where ing and employment, and even physical she tried to seek medical care, but was abuse and rape perpetrated by neigh- refused. “Workers at the camp hospital bors, strangers, other refugees, and were horrendous,” she said. “They didn’t state actors. Transwoman refugees in believe ‘a man’ could be raped.” A friend Beirut reported being stopped by police told her about a local LGBTI group for at checkpoints throughout the city, who refugees in Kampala, and helped her ar- asked them to show their papers and of- range transport to get there.¹¹ fered a choice between lifting up their Trans* refugees face higher and shirts to prove their gender or being more severe GBV risks in their cities of taken straight to jail for processing. refuge than other refugees, including Transwomen refugees in Kam- other sexual minorities. This is widely pala and Beirut shared stories of being agreed among LGBTI refugees and beaten while in police custody, and in LGBTI-friendly refugee service provid- Kampala, being raped in custody. In ers.¹² In Beirut, for instance, although general, within their communities, rape gay Syrian men and women reported occurs regularly; attackers are land- “There is no place to host us. I was like a stray dog on the street.” —Transwoman refugee in Kampala, speaking about having been kicked out of her apartment without forewarning, and not knowing anywhere safe she could go to, even for a night.

VOLUME VI 2015–2016 79 lords, neighbors, strangers, police, and every evening and talk with me . . . One sex work clients. Transwomen in both day he came in the evening and wanted cities, as well as in San Lorenzo, also to have sex . . . I started to fight back . . . reported being verbally harassed and he threw me out with all of my things . . . physically attacked when simply going he called the police and they beat me . . . into a shop to buy small items like ciga- [Now] I don’t have a home, I often don’t rettes or while crossing an intersection. have food to eat. Even at [friend’s] it’s so In short, every public space is a site of crowded. There are nights without food. I violence for trans* refugees, and experi- don’t know what to do.”—Congolese tran- encing violence in some form is a regu- swoman refugee, Kampala lar, if not daily, occurrence. What makes the risks of violence Trans* refugees reported cyclical faced by trans* refugees higher than homelessness in their cities of refuge, those faced by local or host commu- especially upon arrival. Unlike other nity trans* persons is their additional refugees who often take up temporary vulnerability as outsiders—outsiders shelter with family, friends, or fellow whose legal status in the country is refugees, most trans* refugees arrive in often unsettled or contingent. Perpe- cities knowing no one and having little trators take advantage of this vulnera- information about trans*-friendly orga- bility, betting that trans* foreigners are nizations or social networks—potential even less likely than local trans* persons access points for finding a safe place to to go to the police, or to have friends, sleep. family, or other ties to the community Refugees who flee to other cities that could help them seek recourse. are largely responsible for finding and Too afraid to do anything that may put affording their own shelter, and even them at further risk, or draw attention those who are cisgender face significant to themselves, trans* refugees silently challenges landing safe and stable ac- endure violence. commodation.¹³ For trans* refugees this Trans* refugees across these cities task is nearly impossible. Even if they also recounted stories of peers being could somehow afford rent, they are re- murdered—fellow trans* refugees who flexively turned away by landlords and had fled persecution in their home encounter violence while looking for countries, only to be killed later in their potential housing. As one interviewee cities of asylum. Some of these murders reported, “It’s difficult here to get a shel- made the local or regional news, while ter. Whenever I’d go to look for a place others were never officially reported. to rent, I’d be in trouble. I was beaten extensively. [Locals] threw stones at me GBV Risks Related to Lack of and beat me.” Other trans* refugees Access to Shelter reported being pressured by landlords “We live in fear and anxiety and we don’t or others to have sex in exchange for leave the house very much.”—Syrian tran- a place to sleep, or being kicked out of swoman their housing overnight and without warning. “Where I was renting the landlord started Some refugee service providers are to fall in love with me and he used to come aware of the extreme difficulties trans*

80 LGBTQ POLICY JOURNAL refugees face in trying to obtain hous- and the small number of available posi- ing, but struggle with not knowing how tions far outweighs demand. to help them. They are unsure what The majority of trans* refugees con- solutions or safe referrals exist, and this sulted reported doing sex work, either is true even during emergencies where currently or in the past, in order to earn a trans* refugee is in imminent danger. money. In Beirut, for instance, twenty Whereas cisgender refugee women and out of twenty-one transwomen focus children are able to access local shelters group participants identified as current for GBV survivors in some cities, such or former sex workers. In Kampala, all as in Beirut and Quito, neither of these three transwomen who gave individual cities have trans*-friendly shelters avail- interviews self-identified as sex work- able for refugees. The result is a scram- ers. These women did not speak with ble to find a one-off, makeshift solution one voice about sex work; rather, their that varies case by case. Trans* refugees experiences, motivations, and feelings with nowhere to go might be invited to around it are diverse. Some expressed sleep on the floor of a service provider a strong desire to exit sex work, not- during closing hours, or the home of a ing they do it because it is their best, or staff member. only, option for earning enough money to survive in the city. Others primarily GBV Risks Related to a Lack of expressed sadness and frustration that Safe Livelihood Options working in the carries a “Because we are living in Kampala and lot of stigma and related risks of vio- everything is expensive. You have to pay lence. Yet, nearly all shared an interest rent, you also need to dress yourself and in learning protection strategies, and feed yourself. Also, as an LGBTI, who will in being able to access safe and friendly accept you or give you another job? Auto- health care providers and peer support. matically you can be judged so it’s hard to find a job.”—Transwoman refugee sex “If I don’t sleep with peo- worker ple I cannot get enough Refugees in cities look for jobs along- money to feed myself.” side their host community’s urban poor. —Transwoman refugee sex Even in countries where refugees are worker in Kampala not legally permitted to work, as in Leb- anon, many work informal jobs as man- Sex workers everywhere experience ual laborers, domestic workers, street high GBV risks related to their work. peddlers, or garbage collectors. Yet, even They face direct risks of violence from informal sector jobs are out of reach for clients and police, as well as a myriad trans* refugees. In Ecuador, Lebanon, of indirect risks due to discrimination, and Uganda, trans* refugees reported stigmatization, and the criminalization that, for “our kind,” only two employ- of sex work.¹⁴ Yet, because of trans* ment options are possible: working in refugee sex workers’ intersecting iden- hair salons or sex work. Those working tities, they face not only exceptionally in hair salons shared that although the high risks of violence, but also unique work itself is relatively safe, it is unstable barriers to mitigating those risks and

VOLUME VI 2015–2016 81 “They will negate your experience because they accuse us and tell us that the problems we have— we are the roots. ‘You can change, you can change your manners, your dress code’ . . . They say this is the solution to shift. There is no prevention.” — Transwoman refugee in Kampala seeking support as survivors. Reporting types of violence when attempting to violence or threats to the police, for in- access mainstream services, whether stance, could put them at risk of arrest the service providers are humanitarian not just twice—once for being trans* actors, like UNHCR partners, or local and second for selling sex—but a third service providers like hospitals. They time once their legal status and/or iden- also reported overall feelings of fear and tity documents are scrutinized.¹⁵ vulnerability when traveling to provid- Hence, although trans* refugee sex ers’ offices and waiting in line or in com- workers regularly encounter violence, mon spaces for appointments. they are especially reluctant to seek Trans* refugees shared that based any kind of support (including legal or upon their own experiences, as well as psychosocial), fearful that doing so will stories they’d heard from peers, they bring additional violence or jeopardize perceive certain humanitarian actors their status in the country. So once (staff members at refugee organizations again, taking advantage of the fact that responsible for their protection) as being refugees are highly unlikely to report transphobic and unwilling to serve violence, clients and other perpetrators them. For these reasons, trans* refugees are able to exploit and abuse trans* ref- avoid visiting these organizations even ugee sex workers with impunity. if they need assistance; the exception is instances where they believe doing so is GBV Risks When Trying To essential to keeping their refugee status Access Services or advancing their application to be re- “When you go to services you are asked settled in a safer country. questions that reduce your dignity. You Transwomen refugees shared sto- move around the office and every person ries of being stigmatized and emotion- looks to see who you are. It’s a shame to ally abused at points of service by other move around. Me, I’m wondering if it’s refugees, as well as organization staff, not something I’ve created myself, but this including security guards. One tran- is my nature. So I don’t see where to go. swoman, in response to being asked Even if it can be possible to take me out whether she would ever report a threat from here, just outside where I can be safe, of violence to a case manager at a ref- it would be my wish.” —Transwoman ref- ugee service provider, said, “For what? ugee in Kampala It’s dangerous, and they only want to intervene after we have been beaten Trans* refugees reported being discrim- up and raped.” Another transwoman inated against and experiencing various shared that a social worker at a UNHCR

82 LGBTQ POLICY JOURNAL partner organization accused her of refugees: providing them with access being lazy, for “not getting a job like a to information, services, and program- man.” Another transwoman was told ming enabling them to live safer and by a case manager, “I can’t help you be- realize their rights in the communities cause you don’t want to leave that life.” where they seek refuge. Transwomen refugees also have little Even where local, social, and legal faith in referrals from service providers, frameworks condone or enable trans- given past instances where transwomen phobia, humanitarian actors should were referred out of hand to temporary take the minimum steps listed below to shelters and organizations that cater to enhance protection for trans* refugees straight men, which they (transwomen) in urban areas.¹⁶ knew would be dangerous for them. • Ensure that all individuals work- ing in urban response have ap- “They don’t take care of propriate training and guidance to serve trans* refugees, with you because they see trans*-specific materials being a you as abnormal.” compulsory part of training for all gender, protection, and GBV —Transwoman refugee in focal points.¹⁷ Furthermore, just Kampala, describing her as transphobia persists in many experience trying to get urban communities hosting ref- medical treatment at a local ugees, these biases exist among hospital UNHCR staff at field offices and local partner organizations. Con- RECOMMENDATIONS sistent with UNHCR policy and humanitarian non-discrimina- Many cities hosting refugee populations tion principles, all staff must be have social and legal norms that are risk held accountable for meeting factors in and of themselves for trans* standards of care and profession- refugees. Even where non-conforming alism, and treating all refugees sexual orientation or gender expres- with dignity and respect, regard- sion is not explicitly criminalized, laws less of personal beliefs on gender of general application are often used to and appropriate gender roles.¹⁸ detain, prosecute, and penalize trans* • Within each city, identify all persons. They may be targeted, for in- trans*-friendly service providers stance, under impersonation, loitering, and trans* peer networks, such as or public debauchery laws. community-based organizations This legal situation is all the more led by and for trans* individuals, reason for humanitarian actors to de- as well as LGBTI organizations velop guidelines and protocols for help- and trans*-friendly health clinics. ing trans* refugees navigate their way Reach out to them as potential around these cities, which are foreign partners and allies, and coordi- to them in every way. Within the hu- nate with them to establish re- manitarian community, this is known ferral or information-sharing as expanding the protection space for pathways relevant to trans* ref-

VOLUME VI 2015–2016 83 ugees’ protection. Support local leaves trans* refugees without ac- trans*-friendly organizations in cess to protection at times when expanding their reach to include they need it most. trans* refugees, working with • Investigate and evaluate a range them to identify and overcome of potential safe shelter and liveli- obstacles (e.g. language and cost hood options for trans* refugees. barriers) to refugee inclusion. Field staff should compile a range • Develop protocols to guide prac- of potential alternatives, be they titioners in addressing emergen- comparatively trans*-friendly cies faced by trans* refugees, for neighborhoods, apartment build- instance, where a trans* refugee ings, landlords, or shared housing, is arrested by police, evicted over- as well as employers or infor- night, or in need of urgent med- mal employment possibilities. ical assistance. Although local Trans* refugees and members of LGBTI organizations sometimes the host community should be become de facto rapid responders meaningfully consulted in this in these situations, coordination process, with the result being an between them and humanitarian ever-evolving menu of potential actors is often ad hoc, informal, referral options or suggestions, and reactive. This creates confu- regularly updated. sion on appropriate interventions • Where possible, hire a trans* ref- and available resources in urgent ugee or trans* host community moments; it also leaves it murky member to coordinate efforts to as to who has relevant responsi- enhance protection for trans* ref- bility or authority to act in such ugees and/or all LGBTI refugees, cases. and to lead proactive outreach • Ensure trans* refugees in urgent to trans* refugees, engage local situations have access to emer- organizations, develop tailored gency cash assistance. A handful interventions, and consult trans* of trans* refugees said they had refugees along the way. received emergency cash assis- • Explore ways of providing trans* tance at some point in time from refugees with options for access- a humanitarian organization, and ing services—such as alternative that these funds had been critical locations and times for accessing a to their immediate survival. Ad- particular service—in order to en- ditional resources are needed to sure it is provided in a safe space ensure these funds are available by someone who they regard as to trans* refugees in emergen- respectful and knowledgeable cies. Cash assistance is especially about trans* issues. For instance, important given the lack of where trans* refugees tend to live mainstream shelters and services in a particular area of the city, available to refugees. This gap, or even live together, investigate combined with their estrange- ways of bringing services to them, ment from traditional networks rather than insisting they visit of support (e.g. family networks), refugee service providers’ offices

84 LGBTQ POLICY JOURNAL individually, which exposes them they especially likely to flee to cities, but to higher risks of violence while in once there, face extraordinary risks of transit and at points of service. violence and isolation, and even exclu- At the global level, key UNHCR staff sion from mainstream refugee services. should participate in all inter-agency The humanitarian community still has conversations about the appropriate some distance to go in understanding design and implementation of policies the needs and risks facing trans* refu- and interventions engaging trans* in- gees, and also in learning how to reach dividuals. An important example is the out to them in ways that build trust, af- ongoing development of the Trans Im- firm their rights, and encourage them to plementation Tool, a practical guide to come forward to seek the various types implementing programs based on the of support to which they are entitled. specific health needs of trans* popula- Closing this distance will require con- tions.¹⁹ sidering the “T” separately from the L, Outside the humanitarian sphere, G, B, and I, and proactively working to there is a role for policymakers and ensure trans* refugees have meaningful donors to play in providing tangible access to services and protective peer support to trans* refugees. Private networks. A fundamental component of foundations that fund grassroots trans* these efforts will be directly consulting movements and community-based or- with members of the trans* community ganizations can, for instance, explore in the development and implementation opportunities to support local trans* of programming that is tailored to their groups that are led by, or inclusive of, singular needs, responsive to the daily trans* refugees. International develop- realities of their lives as trans* refugees. ment and public health actors who en- gage trans* communities in cities with Jennifer Rosenberg, Senior Program sizeable refugee populations can inquire Officer for Gender-based Violence (GBV), as to whether their programs are reach- leads the Women's Refugee Commission's ing, or could reach, trans* refugees. project on GBV in urban areas. Rosenberg has consulted for Care , conducting CONCLUSION field research on the relationship between asset ownership and women's empower- The majority of all refugees now live ment, and with the American Bar Asso- in cities, a trend that will continue as ciation's Rule of Law Initiative on public refugee camps are made into a last re- education campaigns on sexual violence sort. This new reality necessitates a and gender equality. As a legal advisor to a transformative shift in humanitarian USAID program in Kosovo, she researched response, requiring policymakers, do- women’s access to courts, and conducted nors, and practitioners to overhaul advocacy for reproductive rights while at their approach to programming, and in- the Institute for Policy Integrity at New terrogate past assumptions about how York University School of Law. Previously, to engage and strengthen protection for she worked at the Brennan Center for urban refugees. Justice, clerked in the southern district of Attention to trans* refugees must be- New York, and litigated at a firm in New come part of this overhaul. Not only are York. Rosenberg has an MA in global af-

VOLUME VI 2015–2016 85 fairs, with a concentration in sexual health Meeting on LGBT Rights,” Newsweek, 25 August 2015. and human rights from Yale University. 4. “Protecting Persons with Diverse Sexual She also holds a JD from the University of Orientations and Gender Identities: A Pennsylvania and a BA in political science Global Report on UNHCR’s Efforts to Pro- from Columbia University. tect Lesbian, Gay, Bisexual, Transgender, and Intersex Asylum-Seekers and Refu- ENDNOTES gees,” UNHCR, December 2015., 1. See, e.g., Jessica Chasmar, “Germany 5. While most of the information and Opens First Shelter for Gay Refugees,” The recommendations set forth in the UNHCR Washington Times, 1 February 2016. report pertain to LGBTI refugees general- 2. This article draws upon research findings ly, the report acknowledges that “further first reported in “Mean Streets: Identify- efforts to understand the plight of trans- ing and Responding to Urban Refugees’ gender and intersex persons of concern are Risks of Gender-Based Violence,” Wom- necessary, considering that the majority en’s Refugee Commission, February 2016. of [field] offices indicated that these two Some of the experiences and perspectives categories are not represented in the data” of transwomen refugees described herein offices reported to headquarters, on which are included in the LGBTI chapter of the the report was based; ibid, at 55. More spe- report. cifically, of the 106 UNHCR global offices 3. This article uses LGBTI as shorthand that participated in the study, over 60 per- for lesbian, gay, bisexual, transgender, and cent noted that bisexual and transgender intersex persons, while being mindful the persons were “not represented in the data rising dominance of the acronym poses they reported”; ibid, at 8. conceptual and programmatic challenges, 6. “Mean Streets,” Women’s Refugee including within humanitarian response. Commission. Gay and lesbian refugees Notably, it contributes to the conflation consulted in WRC’s research acknowledged of the two analytically distinct concepts of transgender refugees face higher risks of sexual orientation and gender identity. It violence due to a variety of factors, from also fails to adequately distinguish between having identity documents that discord the different realities faced by, say, trans- with their gender presentation to en- gender refugees compared to intersex refu- countering transphobia at every turn, in gees. Tailored programming and outreach refugee and host communities, as well as in is necessary to identify and address the larger LGBTI communities. Also note that protection risks faced, respectively, by L, G, LGBTI refugees experience more isolation, B, T, and I refugees. That said, in addition violence, and restricted access to justice to being a useful abbreviation, most refu- than other refugees, and that transgender gees with diverse sexual orientations and refugees are especially at risk. See also gender identities or presentations whom “Protecting Persons,” UNHCR, at 15, noting WRC consulted in its research self-identi- that “In some contexts, transgender and fied as LGBTI. Many of the organizational intersex individuals may also be subject to stakeholders consulted—from communi- greater degrees of hostility than others of a ty-based organizations to refugee service diverse SOGI,” and citing as an example the providers—also use and have a common higher number of murders of transgender understanding of the term. Use of the “Q” persons in certain regions. was not common. See, e.g., J. Lester Feder, 7. See, e.g. Chasmar, “Germany Opens First “This is What It’s Like to be an LGBT Syrian Shelter for Gay Refugees.” Fleeing for Your Life,” Buzzfeed, 22 October 8. Most consultations were conducted 2015; and Lucy Westcott, “Gay Refugees through an interpreter of local languages, Address UN Security Council in Historic as needed. In most settings, transportation

86 LGBTQ POLICY JOURNAL or an allowance was provided to refugees to 5 (Chicago: American Medical Association, facilitate access to the location of the group 2010): 573-74; “UNAIDS Guidance Note discussion or interview. Participants were on HIV and Sex Work,” UNAIDS, 2012; provided with background information Deering, K.N., A. Amin, J. Shoveller, et al., about WRC, the nature of the project, and “A Systematic Review of the Correlates of the aims of the field assessments. Participa- Violence Against Sex Workers,” American tion was voluntary, with opportunities for Journal of Public Health Vol. 104, No. 5 refugees to learn about the project before (Washington, DC: American Public Health deciding whether or not to participate. Association, 2014): 42-54; and World Health Everyone who participated gave verbal Organization, “Violence Against Sex Work- consent at the start of each session, as well ers and HIV Prevention,” Information Bulle- as permission for a note-taker to transcribe tin Series No. 3 (2005): 1-2 (citing Cler-Cun- what was said. Participants who expressed ningham, L., and C. Christerson, “Studying an interest in receiving counseling or med- Violence to Stop It,” Research for Sex Work ical treatment were referred to appropriate Vol. 4 (Edinburgh, Scotland: NSWP, 2001): service providers. 25-26). See also World Health Organization 9. For more information on the project, et. al, “Addressing Violence Against Sex including research methodology and Workers,” Implementing Comprehensive HIV/ findings related to other refugee subpop- STI Programs with Sex Workers: Practical ulations—e.g., cisgender women, men, Approaches from Collaborative Interventions children, and adolescents; persons with (Geneva, Switzerland: World Health Orga- disabilities; and refugees engaged in sex nization, October 2013). work—see “Mean Streets,” Women’s Refu- 15. In urban centers, host nation laws and gee Commission. social norms for sexuality and gender play a 10. See also “Protecting Persons,” UN- critical role in trans* refugees’ exposure to HCR, at 27-28: field offices report LGBTI violence. Even where having a diverse gen- refugees are likely to face lower “levels of der identity is not explicitly criminalized acceptance” in camp settings, manifesting or proscribed by statute, laws of general in greater vulnerability to violence and application, such as public debauchery discrimination. laws, are often used to detain, prosecute, 11. Names have been changed. and penalize trans* persons. 12. See “Mean Streets,” Women’s Refugee 16. Consistent with humanitarian “do no Commission. harm” principles and UNHCR’s overall 13. Ibid. The WRC concludes that, in protection mandate, some of these rec- general, urban refugees are frequently ommendations may be more suitably cast turned away for housing or forced to pay as minimum requirements. Additional above-market rents by landlords who do recommendations can be found in “Mean not want to rent to “foreigners,” and that Streets,” supra note 2, including concrete due to resource limitations only a tiny recommendations for enhancing protec- fraction of refugees are eligible to receive tion for all LGBTI refugees and for refugees cash assistance for rent and/or assistance in engaged in sex work, as well as for im- scouting housing options. proving the longer-term mainstreaming of 14. Public health and social science lit- trans*, lesbian, gay, and intersex refugees’ erature establishes the prevalence and rights, needs, and participation throughout typology of GBV risks encountered by those humanitarian response. working in the commercial sex industry. 17. In December 2015, UNHCR and the See, e.g., K. Shannon and J. Csete, “Vio- International Organization for Migration lence, Condom Negotiation and HIV/STI released a comprehensive, five-module, RiskAamong Sex Workers,” Journal of the multi-day training package, Working with American Medical Association Vol. 304, No. LGBTI Persons in the Humanitarian Context,

VOLUME VI 2015–2016 87 for all staff working with refugees, mi- centrality of humanitarian actors using grants, displaced persons, stateless persons, a “human rights-based approach” that and other emergency-affected individuals. promotes beliefs and norms that foster The extensive package includes a wide respectful, non-violent gender norms and a range of learning materials, webinars, and “survivor-centered approach,” in which all guidance for both participants and facilita- survivors of GBV are treated with dignity, tors. As a next step, UNHCR must ensure without feeling shamed or stigmatized. these training materials are used and 19. A consultative meeting regarding the learning takes ground at the field level. At TRANSIT was held in Bangkok in July the same time, a shorter, practical directive 2015, supported by USAID, UNFPA, UNDP, is needed to guide staff currently struggling and the International Reference Group on with how to approach day-to-day opera- Trans* and Gender Variant and HIV/AIDS tional protection issues affecting trans* Issues; In September 2015, UNHCR signed and other sexual and gender minority on to a joint statement with eleven other refugees. Appropriate responses to protec- UN agencies, calling for an end to violence tion concerns will of course depend upon and discrimination against all LGBTI per- local contexts, but a concise blueprint of sons and affirming their rights. concrete steps to take—such as mapping referral pathways with trans-friendly host community organizations, adapting sample interventions, and vetting shelter options— is needed. 18. See “Age, Gender and Diversity Policy: Working with People and Communities for Equality and Protection,” UNHCR, 1 June 2011: “UNHCR acknowledges and reaffirms that the complete realization of gender equality is an inalienable and indivisible feature of all human rights and fundamen- tal freedoms. The systematic promotion of this principle in measurable results is essential to ensuring protection and dura- ble solutions for . . . [persons] served by the Organisation.”; “Age, Gender and Diversity Mainstreaming Forward Plan 2011-2016,” UNHCR, 5 June 2012: affirming UNHCR’s commitment to “addressing discrimina- tion and inequality where we find it and to ensuring that we do not inadvertently contribute to further discrimination and injustice through the use of procedures and practices that fail to respond to inequalities caused by gender . . . ” See also “Guidelines for Integrating Gender-Based Violence in Humanitarian Action,” Inter-Agency Standing Committee, 2015: articulating a series of governing principles “linked to the overarching humanitarian responsibility to provide protection and assistance to those affected by a crisis,” including the

88 LGBTQ POLICY JOURNAL The Other Side of the Mirror: Eating Disorder Treatment and Gender Identity

Evelyn Deshane

ABSTRACT

When transgender men and non-binary people are treated for an eating disorder, they are often not recognized as transgender since most treatment centers assume the patient is a cisgender woman. Because of this, transgender men and non-binary people are either forced to suppress their identities in order to receive treatment, or their gender dysphoria is misdiagnosed as distorted body image (also known as body dysmorphia). Dysphoria means “negative feeling” and links the patient’s concerns with their body, whereas dysmorphia concludes the patient’s problem is a delusion where they see something that is not there, such as fat. The diagnosis of body dysmorphia (rather than gender dysphoria) characterizes the patient’s feeling of bodily discomfort as a problem of thought to be solved through a regime of ther- apy aimed at correcting body image and weight gain through a regimented meal plan. By not acknowledging other reasons why a patient may feel bodily discomfort, institutions risk a patient’s future health and effectively erase transgender identity inside their walls. As I illustrate through case studies and primary materials from North American clin- ics, eating disorder treatment and gender transition both use talk therapy and medi- cal intervention as methods of treatment. Because of this similarity, amending policy forms for eating disorder clinics to neutral gendered language can be a way to dimin- ish monolithic ideas of the eating disorder patient. By isolating the direct cause of each patient’s bodily discomfort, a better understanding of future options—whether that includes gender transition or gender therapy—can be made available to them.

INTRODUCTION Space,” in the anthology Gender Out- When Kyle Lukoff called an eating dis- laws, even after his arrival, the doctors at order clinic, he was told they do not the clinic did not know what to do with take men. When he disclosed he was a his “special case.”1 After several confer- female-to-male transgender man who ences, they decided it was better for him had started hormone therapy, one clinic not to disclose his gender identity and finally accepted him for treatment. As pass as a woman in the facility. After all, he documents in his essay, “Taking Up one of the doctors asked, “What does

VOLUME VI 2015–2016 89 this [transgender identity] have to do ment and fundamental misunderstand- with eating disorder treatment?”2 ing of their eating disorder. Canadian Lukoff’s essay demonstrates his in- singer Rae Spoon documents similar ability to separate his eating disorder feelings to their body in their memoir and his gender identity disorder, and the Gender Failure. “I stopped eating,” Spoon reluctance of the medical community to writes. “I started to like the euphoric see the issues as related. For Lukoff, the feeling I got when I threw out my lunch typical transgender narrative of being and ran on adrenaline the rest of the born in the wrong body blurs with the day.”5 As Spoon documents, not eating stereotypical eating disorder narrative was their way of saying “I don’t want to of wanting control. As Lukoff writes, be here,” where ‘here’ was the body they “I wanted to lose weight, somehow be- were in and the expectations that came lieving that a loss of five, ten, or maybe with it.6 fifteen pounds would soothe the dis- Spoon, like Lukoff, was declared fe- comfort I felt being present in my own male at birth (DFAB), but currently does skin.”3 When Lukoff tried to describe his not identify as either male or female. urge to not be in his female-coded body, Spoon documents how transitioning in most doctors saw a woman who had be- the typical way (female-to-male, using come too thin and had low self-esteem, masculine pronouns, and accessing thereby trumping all feelings of gender healthcare for trans men) did not fit in dysphoria with instances of body dys- with their sense of self the way they’d morphia. hoped. Because of this experience, they These two psychiatric conditions titled their memoir Gender Failure in are very similar; they both deal with the a tongue-and-cheek way to reclaim a patient’s relation to their body and how sense of loss in not being able to find they perceive it. However, the treat- something that matches who they are ments are different enough to cause inside. Their eating disorder symptoms significant damage to a transgender and need to feel “lighter” reconceptual- person’s understanding of their own izes the typical gender dysphoria into body, gender, and ultimate identity. For something where the body is literally instance, later in Lukoff’s life, after fig- too heavy to bear.7 Both Lukoff and uring out his identity and making the Spoon demonstrate the significant dis- steps to transition, in order to receive connect between self and body that can treatment for his unhealthy eating hab- occur in a patient with gender dyspho- its, he was stripped of his masculinity ria, but they also document the medical inside institutional walls. As Lukoff institution’s inability to see the complex writes, “When the director of the eating nuances of gender and identity. Both of disorders ward told me not to disclose, I these factors together form the perfect shut up. I ate my ‘therapeutic snack’ and storm of misdiagnoses and mistreat- participated in yoga, drew an ourorbo- ment in mental health practices for eat- ros in art therapy, and didn’t talk much ing disorders and transgender health about the eating disorder that landed care alike. me in there.”4 In this essay, I explore the question Lukoff is not the only transgender that Lukoff’s doctor posed: “What does person who has experienced this treat- [transgender identity] have to do with

90 LGBTQ POLICY JOURNAL eating disorder treatment?” My short care professionals have about gender— answer is much like Lukoff’s, where I and subsequently, their patients—can can simply say “everything.” In order be called into question. If we want to to understand how someone responds have a better grasp of eating disorders to their body and its larger place in the and how they affect people, we need to world, examining gender is a must— broaden our understanding of what it especially when most symptoms of an means to have a gender and to have a eating disorder in DFAB people, such body, and the possible futures available as amenorrhea and the loss of breasts to patients after recovery. Much of this and hips, mimic what hormone therapy means changing the language we use to can do for them during transition. Most describe eating disorders to terms that medical practices in eating disorder do not pathologize the patient’s per- clinics approach gender from a cisgen- spective and strive to use neutral terms der perspective, and without under- when dealing with gender so it is not standing the complex nuances of what inherently linked to biology. If doctors gender identity means in relation to the and health care practitioners can go be- individual who experiences it. yond treating the surface symptoms of When a patient presents significant an eating disorder and interrogate the distress about their body, be it from functionality of the patient’s actions, al- the body being too fat or too feminine, ternative methods of treatment (which they are often diagnosed as having a may include gender transition) can be “disturbance of body image,” also called listed as an option in the future. body dysmorphia.8 As I document, this diagnosis compromises the patient’s DIAGNOSING THE PROBLEM perspective by removing their bodily au- tonomy, which is ultimately damaging Most depictions of eating disorders for both transgender and cisgender pa- surround a monolithic idea of a perfec- tients alike. Treatment for both gender tion-seeking, usually white and upper dysphoria and eating disorders is often middle class, type-A personality, young a combination of medically sanctioned woman. She starves herself by eating lit- tests, scientific observations, and surgi- tle and/or counting calories because she cal procedures, in addition to talk ther- wants to be “perfect.” Her idea of perfec- apy and other psychological approaches. tion usually surrounds beauty, though As much as medical practitioners can there are other cases where achieve- objectively treat these serious symp- ment and perfection are linked. In The toms and their effect on the body, the Best Little Girl In The World by Steven assumptions a practitioner or therapist Levenkron, Kessa longs to be a perfect has about gender will always influence ballerina and starves herself excessively the kind of treatment a patient is given, to achieve this goal.9 Marya Hornbach- as Lukoff’s and Spoon’s cases both illus- er’s Wasted demonstrates the need for trate throughout this essay. obtaining perfection through achieve- By dismantling the binary system ment, both bodily and intellectually.10 of gender division that takes place in It is no surprise these two books remain many eating disorder treatment cen- some of the most popular nonfiction ters, the underlying assumptions health reads about eating disorders, since they

VOLUME VI 2015–2016 91 both fit both these paradigms so nicely. he has gone “across” to the other gen- Doctors and medical institutions der, whereas Spoon identifies as non-bi- create and facilitate treatments based nary, as something “beyond” what they on this idealized perfection-seeking pa- were declared at birth. Both have had tient. For instance, most eating disorder the same perception of their birth sex treatment centers do not allow maga- (female) thrust on them. As a result, Lu- zines because it could be damaging or koff notes, “While I didn’t like being read triggering for the patients undergoing as female, it was at least predictable and treatment, effectively acting as “thin- understandable.”13 To the larger outside spiration” for beauty-seekers.11 Many world, both of them appeared female, treatment centers give lessons about until they began speaking up and voic- media-manipulated images and par- ing their discomforts. rot back daily affirmations about how These differences are important to beautiful the patient is on the outside, understand in order to differentiate as well as on the inside. Many of the transgender people from those who are treatments in eating disorder clinics, intersex or cisgender. Intersex people like the type Lukoff visited, use yoga or are born with physical differences in relaxation therapy to help calm patients their genitals and/or chromosomes, and with type-A personalities who may asso- must deal with another level of medical ciate thinness with productivity. Many intervention and social issues. Cisgen- treatment centers shape their practices der and transgender people, however, with a unilateral idea of what it means look physically the same when they are to be an anorexic: white, thin (danger- born. As a transgender person grows ously so), and a cisgender woman older, the disconnection between their The “trans” in transgender means internal sense of gender and their phys- “across” or “beyond,” and designates a ical body grows and becomes more obvi- difference in identity than what a person ous to them. A transgender person must has been declared at birth. Cisgender is declare they are transgender or long to the opposite of transgender; the term be a different gender; without that dec- is derived from the Latinate prefix “on laration, it is impossible for the outside the same side of.” Earlier in this essay, world to tell they are different. I referred to Rae Spoon and Kyle Lukoff In transgender author Julia Serano’s as having been declared female at birth book Whipping Girl, she documents (DFAB). This term, along with its coun- the nuanced way transgender people terpart declared male at birth (DMAB), experience their internal gender dif- designates the first instance of misgen- ference. Instead of a typical sex-gender dering in the medical institution for dichotomy, Serano posits a threefold many transgender people. Saying “de- approach, where there is sex, gender, clared” affirms that these people did not and something she calls “subconscious get the chance to choose their gender, sex,” which is an “intrinsic, self-under- but consequently had that gender thrust standing” of one’s sexual embodiment.14 upon them.12 Lukoff and Spoon, though To Serano, “cissexuals tend not to notice they are both DFAB transgender people, or appreciate their own subconscious do not have the same gender identity. sex because it is concordant with their Lukoff is a transgender man, meaning physical sex (and therefore, they tend to

92 LGBTQ POLICY JOURNAL conflate the two).”15 In contrast, a trans- DYSPHORIA AND DYSMORPHIA gender person is constantly at odds with their subconscious sex, since it does not The root of the word dysphoria is Greek match up with their outside body. These and translates to “difficult to bear.” feelings of disconnect fuel the “wrong When a patient is presented with “gen- body” narrative as Serano explains. For der dysphoria,” it means their gender Lukoff, his subconscious sex is of a man. is causing them distress, to the point For Rae Spoon, it is of something else where they are unable to function as entirely. they currently are. There are several With these differences in mind, let ways to categorize dysphoria. Social us imagine Lukoff when his eating dis- dysphoria is distress caused by how oth- order first manifested in his teen years. ers view the transgender patient’s body; He dwindles away to a size zero and misgendering from being unable to pass shows up for treatment. However, as as the desired gender is a common ex- for most transgender people in their amples, where passing is the act of being teens—especially during the 1990s read as cisgender. Body dysphoria is when this occurred—there was little ac- distress caused by the state of a trans- cess to the word “transgender” and what gender person’s body, usually because it meat; all Lukoff had was a “discomfort their genitals or other secondary sex [from being] present in my own skin.”16 characteristics do not match the typical Lukoff’s discomfort is felt by many view of what a man or woman possess. transgender people and categorized as These dysphorias end up demonstrating gender dysphoria, the leading symptom how the patient’s subconscious sex is at when diagnosing gender identity disor- odds with their physical body, and like der (GID).17 However, for gender-variant Serano notes, are the major reason why teens or adults in eating disorder treat- transgender people pursue surgery and ment centers, the dysphoria can be cat- gender transition. egorized as “disturbed body image,” one In her essay “Undiagnosing Gen- of the leading symptoms for anorexia der,” Judith Butler notes that in order nervosa.18 to receive treatment for gender tran- To a medical practitioner, these sition, patients need to be diagnosed feelings of discomfort appear the same with dysphoria.19 Butler critiques the because transgender people and cis- medical system for this requirement, gender people physically appear the since it forces transgender people into same before transition. But by failing to a perpetual dilemma. In order to obtain question why someone like Lukoff feels treatment for surgeries that will align discomfort in his own skin and therefore their “subconscious sex” with their resorts to restricting, the medical prac- physical ones, transgender people must titioner, and the institution as a whole, undergo intensive, and often invasive, have made a sweeping assumption therapy before they can be diagnosed. that everyone they treat is a cisgender This diagnosis is often quite necessary, woman with a distorted body image. It’s as these surgeries are expensive and re- here—where dysphoria is categorized as quire institutional approval for govern- dysmorphia—that the problem begins. ments or insurance providers to help share the cost. Some doctors also refuse

VOLUME VI 2015–2016 93 to perform the surgeries, even if the sees themselves as fat, but are actually patient has the funding, unless a psy- underweight, doctors refer to this as the chiatric doctor has signed off. In order same “disturbed body image” that Jon for the transgender patient to be physi- E. Grant and Katherine A. Phillips ac- cally seen the way they wish to be, they knowledge in their article about BBD.23 must first admit that they are mentally The connection between body dys- unhealthy—which, as Butler notes, can morphia, disturbed body image, and have devastating psychological conse- eating disorders has not been forgotten quences, especially in the hands of the in popular media. In The Best Little Girl transphobic.20 in The World, Kessa consistently and re- The term dysphoria differs greatly peatedly confronts a fatter vision of her- from dysmorphia. Body dysmorphic self when she looks in the mirror.24 Her disorder (BDD) is a mental illness in reality—in Steven Levenkron’s depiction which a patient is “preoccupied with and the medical institution’s assessment their appearance, thinking that they of it—is inaccurate. Her perception can- look abnormal, ugly, or deformed,” and not be trusted and is therefore labeled often seeks to soothe this feeling of dis- as pathological. The image of the eating tress through repeated tasks.21 In much disorder patient in front of a mirror that of medical literature, however, BDD is displays two separate realities is so com- separated from eating disorders. This mon in public service announcements may seem counterintuitive since most (PSAs) for anorexia (as seen in Figure 1) of western’s cultural perception of an- that it has become its own trope. orexia nervosa stems from a component All of these depictions posit the pa- of body dysmorphic disorder called “dis- tient in the same way: as the wrong turbed body image.”22 When a patient party, the “crazy” party, and ultimately,

FIGURE 1

A screencapped image from a PSA on anorexia called "The Mirror." One of many examples of the eating disorder mirror trope, where the patient sees the fat self on one side and the audience is shown the waifish reality on the other.

94 LGBTQ POLICY JOURNAL the person/perception to be “fixed.” The medical one before being discharged. other side of the mirror, where the “real” The medical diagnosis usually corre- picture of the patient resides, is repre- sponds to a healthy heart rate and blood sented by an underweight physique. work, along with a specific weight goal, The underweight body is not the same determined through body mass index one we see in glossy magazines or de- calculations. The institution’s focus picted in fashion shoots wearing a size on numbers and weight privileges one zero. Instead, the underweight body is version of reality, or side of the mirror. a malnourished one that needs to be Weight control and constant measure- saved by a medical institution and treat- ment—usually seen as the domain of ment centers. The negative connota- the eating disorder patient—are now tions for the other side of the mirror are handed over to the doctors, nurses, and never questioned because it is assumed care workers. Their opinions of weight to represent reality. and measurement are what is approved, Many eating disorder treatment cen- not the patient’s. Therefore, in order to ters focus on both therapeutic and med- achieve a clean bill of health, a patient ical treatments; they diverge away from must step to the other side of the mirror a sole talking cure, instead blending it in order to be discharged. The patient with a number of other medical tactics, must take on the medical institution’s such as heart monitoring, blood testing, version of reality and accept it without and weight management. Lukoff notes thought, or else pay a heavy price in the hybridity of these treatments when bodily autonomy. he describes his “therapeutic snack.”25 The diagnosis of dysphoria, for all its In Lukoff’s example, the eating disor- problems in relation to gender transi- der center treats food, which must be tion (as I will discuss later), represents taken into the body, the same way as a better diagnostic label for the symp- therapeutic confession, where negative toms of eating disorders, simply because thoughts and attributes of the disorder it privileges the patient’s point of view. must be dispelled. To treat an anorexic If we take a transgender patient and put patient, their body and mind is turned them in the same PSA mirror trope, the inside out; they are expected to explain ad would look very different. It would be why they have become this way and at Kyle Lukoff standing in front of a mir- the same time confess how they were ror. On reality’s side, he is in a woman’s able to accomplish it. Patients are also body. On the other side, representing told when, where, and what to eat and his point of view, he is a man. Gender usually do so under intense supervision. transition takes the reality side and Many facilities have timed eating sched- conforms it to Kyle’s image of himself. ules and strict caloric requirements. Hormone therapy and surgeries can When a patient is unable to ingest all of do this, but so can different clothing, their food, they are forced to eat through name changes, and sex marker changes a gastrointestinal tube that covers the on licenses, birth certificates, and other mouth and goes into the throat.26 government documentation. Transition Many eating disorder treatment pro- allows the disconnection between self grams require that patients undergo and body to heal, and it does so by privi- both a psychiatric evaluation and a leging the patient’s perspective.

VOLUME VI 2015–2016 95 TREATMENT OPTIONS policies to treat transgender patients, Butler suggests embracing transition As Butler notes in her essay, the medical via the medical system “strategically.”28 system creates an idealized transgender Though patients should continue to use patient through its vetting process. A the model as it currently is because they transgender person who wants to tran- have no better options, they should be sition from male to female, or female to fully aware of its problems and tendency male, and is willing to “perform” that to only promote the typical “success sto- gender in all the culturally appropriate ries” of gender transition.29 ways will end up receiving the needed These medically sanctioned trans- diagnosis and the proper treatment gender narratives, where the ending is within the medical system. Butler writes always surgery, are often not obtainable that this diagnosis or even desirable by many members of the transgender community. For trans- makes assumptions about fa- gender men in particular, the bottom thers and mothers, and what surgery, in which doctors construct a normal family life is, and should penis and testes through implants and have been. It assumes the lan- skin grafts, is often too expensive and guage of correction, adaptation, invasive to be achievable—or desir- and normalization. It seeks to able—as only 3 percent of transgender uphold the gender norms of the men have had the operation.30 Many world as it is currently consti- prefer to allow testosterone injections tuted and tends to pathologize to elongate the clitoris instead, which any effort to produce gender in will function as a suitable phallus. In ways that fail to conform to ex- some states and provinces, though, the isting norms (or, fails to conform bottom surgery must be completed in to a certain dominant fantasy of order for sex markers on social papers what existing norms actually to change from female to male. Those are). It is a diagnosis that has who do not, cannot, or will not have the been given to people against surgery are left in an incomplete limbo their will, and it is a diagnosis of gender. Some may be able to pass as that has effectively broken the men in daily life, but are unable to ob- will of many people, especially tain a proper license. queer and trans youth.27 For transgender people who do not identify as either male or female, they In this passage, Butler points out the may not have a need for surgery what- way in which medical transition essen- soever, which makes easing gender dys- tializes gender roles. She does not cri- phoria, in a world determined to see tique this to delegitimize the desire that two only , especially fraught. As drives people to transition, but instead Lukoff notes, “when my eating disorder to call out the medical system as the resurfaced, both my life and my gender responsible party. It is not the patient’s were indefinable.”31 Because an eating desire that is wrong, but rather how disorder can be a way to take control of that desire is treated. Until the medical life, when distressing gender symptoms system develops new procedures and came back—for example, an inability

96 LGBTQ POLICY JOURNAL to pass as a man in several instances— Group ended five min[ute]s early Lukoff returned to his prior habits. His and after I went to the wash- state of feeling “indefinable” is com- room Kayla [a counselor] called mon for transgender people, especially me over. She’s like “Oh no, don’t those who are DFAB and even more so worry, you’re not in trouble. I to those who are denied treatment op- just wanted to tell you some- tions for their gender. Low body weight thing face-to-face.” We were in due to anorexia and other disordered the weight room and she pulled eating habits often lead to thinner hips, the green chairs closer together smaller breasts, and amenorrhea. Some- and we sat down. She went on at times body hair can even become darker. first about how she saw a part of Many of these symptoms are similar to me in group that she had never the effects that testosterone has on the seen before. How I was a tough body. In typical eating disorder treat- person but it’s [sic] okay to cry ment centers, the lack of signs or onset and stuff. It was weird she was of puberty in anorexic people is indica- actually being nice and I didn’t tive of their fear of growing up. But this feel that authoritativeness when logic again assumes a cisgender woman we talked. She was actually treat- patient.32 If we broaden our definition of ing me equal, or it felt that way who an anorexic patient could be, then for a little at least. She asked me deliberately avoiding the signs of pu- if I was okay and I said “Yeah . berty can be synonymous with gender . . but I’m a bit upset about my dysphoria and a way to either solve—or weight.” I started crying again at put off thinking about—what their gen- this point. And then she got on der could mean to the outside world and about me asking if I was scared to their future. to gain weight. I’m scared to lose Currently, the treatment of eating weight—I don’t wanna lose my disorders by diagnosing a distorted summer by being in this place! body image actively works against the And I want to be healthy. And patient’s perspective—and to their det- she’s like “I know you know you riment. Treating eating disorders often want to be healthy, but are you makes the patient feel as if they cannot scared of gaining?” I paused and talk, that all the thoughts in their head in a way I am because every- are wrong, and in order to get out of the thing I’ve read says weight gain treatment center they must conform. is hard but for me [but] it’s good. When Lukoff states, “I shut up” in his She then said I was petrified of treatment center, he speaks about his weight gain. I’m not petrified. gender being stripped from him in the I tried to tell her that I’m more institutional walls, but he also articu- worried about my weight now lates the deeply suppressing atmosphere because I never used to run to of most eating disorder treatment cen- the scale, so numbers don’t re- ters, where even cisgender patients are ally mean much to me. It’s more silenced in similar ways. In an excerpt so how I looked. She asked me from a journal, a fifteen-year-old re- how I looked and if I liked it. I marks on her treatment: said no, but she kept pushing it.

VOLUME VI 2015–2016 97 It was like she wanted me to say people who exhibit symptoms of eating yes, but I don’t know anymore. I disorders are often misdiagnosed with like my stomach flat but, gah, my body dysmorphia or distorted body bones stick out. I know that’s not image, rather than gender dysphoria, good or attractive. I don’t know and that their subsequent treatment anymore. I’m so confused about often ends up further disconnecting what I feel or why or when. I just them from the body they possess. A way don’t know.33 to solve this is by having more doctors and treatment specialists trained to rec- The entire exchange documented in this ognize when patients may have issues passage represents the anorexic patient’s with their gender. Since many eating view on the world being torn from her. disorder treatment centers require an When the patient, who used the code intake interview in which they question name Diana, stated that she didn’t want the patient on their bingeing/purging or to look as thin as she was, the counselor restricting behavior, it would be easy to Kayla repeatedly challenged this asser- adapt the interview to include a gender tion until Diana caved. The exchange history as well. That way, if a patient is occurred in an empty room after group present with gender dysphoria, which therapy, when Diana was already vul- triggered their restrictive eating, they nerable, and while the patient “was cry- can be given access to the proper chan- ing again at this point.” nels for gender transition and/or gen- By the end of the ordeal, there was der therapy. Moreover, eating disorder no healing—only confusion—as the programs should be required to have a constant refrains of “I don’t know” in- basic preliminary class or workshop on dicate. At its core, the diagnosis of a gender identity, similar to those many distorted body image distrusts the an- places already run on body image or the orexic’s view on the world with damag- beauty myth. ing consequences. If we start to view the Patient education could also play a discomfort felt by all eating disorder pa- key role. Both Lukoff and Spoon note tients as dysphoria rather than dysmor- that they had no idea there was a term phia, and label it as such, the patient’s for how they felt about their bodies until perspective on their condition will much later in their life, and after they be given fair consideration. A simple did, were able to articulate their feel- change of terminology will allow for a ings with sudden clarity. This is a com- more inclusive atmosphere for a trans- mon experience for transgender people, gender patient, but also allow for peo- especially those who are DFAB, since ple’s, like Diana’s, perspective on their there is little representation of trans- own body to be appreciated and heard, gender men or non-binary identity. If hopefully allowing them to be more re- we can educate younger teens who are sponsive and receptive to medical and hospitalized with eating disorders about psychological treatments. gender and give them better language to express their feelings, they may be able CONCLUSION to replace their feelings of being too fat with feelings of being too feminine (or In this essay, I have argued that DFAB alternatively, for transgender women

98 LGBTQ POLICY JOURNAL who are institutionalized, maybe not will need is to not divide patients up in feeling feminine enough). This language the first place, be it a transgender man may not solve their eating problems, or woman, cisgender man or woman, or but it will give them a new trajectory in none of the above. their treatment. Furthermore, providing As both Rae Spoon and Kyle Lu- education to both health care providers koff illustrate, their eating disorders and patients in an eating disorder pro- were both a coping mechanism for the gram on the importance of hormones world and a symptom of their gender will help shape future treatment. DFAB dysphoria. By only understanding one patients experiencing amenorrhea often motivation for an eating disorder, we suffer from bone loss because hormones risk isolating an entire group of people. are needed for proper maintenance. Moreover, I have been arguing that the Though many pamphlets discussing way we treat eating disorder patients, osteopenia (bone deterioration that is cis or trans, is deeply flawed through its not as severe as osteoporosis) in eating construction of distorted body image disorder patients state that estrogen is present, since a diagnosis of dysmorphia required to maintain bone mass, this is does not allow for the patient to express technically not true—any hormone can their discontent with their body or their be used to maintain bone mass.34 Using place in the world. Rather, this diagno- neutralized language, hormones, rather sis works on deliberately silencing them, than estrogen, will help to disentangle sometimes through very traumatic the biologically determined nature of means. The concept of dysphoria as a most eating disorder treatment centers. feeling difficult to bear shifts the atten- No one wants anyone to have an eat- tion from the patient’s inherent error in ing disorder. Eating disorders are one reality or pathology to the pain they suf- of the deadliest mental health illnesses fer. There is no doubt that anyone, cis and can affect people for years after- or trans, with an eating disorder suffers ward. But for a young transgender kid from something. That much is easy to still figuring out who they are, starving comprehend, even for those of us who themselves into amenorrhea may be the have never experienced disordered eat- only way they think they can escape the ing. Undergoing treatment should not terrible dysphoria they feel when they be about antagonizing the suffering as get their period. If they see neutralized wrong or illogical, but instead about language explaining the importance of finding a way to bear its burden. hormones, they might be more willing to engage in treatment with the under- Evelyn Deshane has written articles on standing that in the future they may transgender identity and politics for the not have estrogen flowing through their Atlantic’s Tech Channel, Plenitude Mag- body, but rather testosterone. Neutral azine, Briarpatch Magazine, and Hoax language on admission, policy, and in- Zine. Deshane received an MA from Trent take forms should also be used. In the University in transgender narratives and is west, an eating disorder is a heavily gen- now attending Waterloo University for a dered condition and one of the ways to PhD, writing on transgender representa- deconstruct our assumptions on who tion in American road novels and adap- that patient is and what treatment they tion theory. See evedeshane.wordpress.com

VOLUME VI 2015–2016 99 for more on writing projects and speaking ENDNOTES events. 1. Kyle Lukoff, “Taking Up Space,” Gender Outlaws: The Next Generation, eds. Kate BIBLIOGRAPHY Bornstein and S. Bear Bergman (New York: Beredjick, Camille. “DSM-V To Rename Seal Press, 2010): 153. Gender Identity Disorder ‘Gender Dys- 2. Ibid. phoria.’” Last modified 23 July 2012. http:// 3. Ibid, 155. www.advocate.com/politics/transgen- 4. Ibid, 157-158. der/2012/07/23/dsm-replaces-gender-iden- 5. Rae Spoon, Gender Failure (: Arse- tity-disorder-gender-dysphoria. nal Pulp Press, 2013): 115. Brumberg, Joan Jacobs. Fasting Girls: The 6. Ibid. History of Anorexia Nervosa. New York: 7. Ibid, 157. Plume Books, 1989. 8. Joan Jacobs Brumberg, Fasting Girls: The Butler, Judith. Undoing Gender. New York: History of Anorexia Nervosa (New York: Routledge, 2004. Plume Books, 1989): 11. Currah, Paisley. “Expecting Bodies: The 9. Steven Levenkron, The Best Little Girl In Pregnant Man and Transgender Exclusion The World (New York: Grant Central Pub- from the Employment Non-Discrimination lishing, 1989): 6. Act.” Women’s Studies Quarterly. Vol. 36, No. 10. Marya Hornbacher, Wasted (New York: 3/4, (2008). 330-336. HarperPeren, 2006): 6-7. Deshane, Evelyn. “Fractured Lives: A Narra- 11. Diana, e-mail message to author, 01 tive Account of Mental Illness.” Hoax Zine. December 2013. Vol 10: Embodiments. (2014). 15-20. 12. DMAB or DFAB is also sometimes Grant, Jon. E., and Katherine A. Phil- referred to as AMAB or AFAB, where the “a” lips. Harvard Rev Psychiatry. 2004; 12(2): stands for assigned rather than declared. I’ve opted not to use this version because of 123–126. doi: 10.1080/10673220490447236. Hornbacher, Marya. Wasted. New York: outcry from the intersex community over HarperPeren, 2006. the terminology. Because intersex people Irving, Dan. “Normalized transgressions: have often been assigned a gender through Legitimizing the transsexual body as surgical means, the use of “assigned” as a productive.” Radical History 100. (Winter metaphor for transgender people can be 2008). 40-57. offensive. Alternatively, to differentiate Levenkron, Steven. The Best Little Girl In the terms, some people will say “coercively The World. New York: Grant Central Pub- assigned” to indicate an intersex surgery. lishing, 1989. 13. Lukoff, “Taking Up Space,” 153 Lukoff, Kyle. “Taking Up Space.” Gender 14. Julia Serano, Whipping Girl: A Transsex- Outlaws: The Next Generation. Eds. Kate ual Woman On and the Scapegoating Bornstein and S. Bear Bergman. New York: of Femininity (Berkeley, California: Seal Seal Press, 2010. Press, 2007): 78. Serano, Julia. Whipping Girl: A Transsexual 15. Ibid. Woman On Sexism and The Scapegoating of 16.. Lukoff, “Taking Up Space,” 155. Femininity. Berkeley: Seal Press, 2007. 17. Butler’s article was published in 2004, Spoon, Rae. Gender Failure. Toronto: Arse- when a diagnosis of gender identity disor- nal Pulp Press, 2013. der was needed to medically transition. In Verbeeck, Michael. “The Mirror.” YouTube 2012, the DSM-V dropped the “disorder” Video, 40 seconds. 24 Feb 2008. https:// and replaced the diagnosis with gender dysphoria. I’ve continued to use Butler’s www.youtube.com/watch?v=8VoAj_6iKTo. article because her critique of the medical system is still valid. Even when dropping the “disorder,” a diagnosis is still medically

100 LGBTQ POLICY JOURNAL necessary and relevant in order to tran- but on paper, they may be assigned their sition, which makes the patient’s place as birth sex as their gender identity, therefore fraught as before. making gathering statistics nearly impos- 18. Grant, Jon E., and Katherine A. Phillips, sible. There are a number of treatment “Is Anorexia Nervosa a Subtype of Body centers that provide care for both men and Dysmorphic Disorder? Probably Not, but women who have eating disorders, but they Read On…” Harvard Review of Psychiatry still assume a cisgender identity and body. Vol. 12, No. 2 (2004): 123-126. The assumption that all patients, men or 19. Judith Butler, Undoing Gender (New women, are cisgender is one of the major York: Routledge, 2004): 75. components I argue should be revised when 20. Ibid, 76. treating eating disorders. 21. Grant, Jon E. and Katherine A. Phillips, 33. Evelyn Deshane “Fractured Lives: A “Is Anorexia Nervosa a Subtype of Body Narrative Account of Mental Illness,” Hoax Dysmorphic Disorder? Probably Not, but Zine Vol 10 (2014): 20. Read On…” 34. Diana, e-mail message to author, 01 22. Ibid. December 2013. 23. Grant and Phillips do examine several morbid cases of BDD and anorexia in the same patient, but ultimately argue that although “these disorders overlap in in- triguing ways, and in some cases are hard to differentiate . . . they should be differentiat- ed clinically, primarily because they seem to respond differently to treatment.” 24. Levenkron, The Best Little Girl In The World. 25. Lukoff, “Taking Up Space,” 153. 26. Diana, e-mail message to author, 01 December 2013. 27. Butler, Undoing Gender, 77. 28. Ibid, 91. 29. Dan Irving, “Normalized Transgres- sions: Legitimizing the Transsexual Body as Productive,” Radical History 100 (Winter 2008): 40-57. 30. Paisley Currah, “Expecting Bodies: The Pregnant Man and Transgender Exclusion from the Employment Non-Discrimination Act,” Women’s Studies Quarterly Vol. 36, No. 3/4 (2008): 330-336. 31. Lukoff, “Taking Up Space,” 153. 32. It can be difficult to discern with accu- racy the amount of transgender patients in treatment centers for eating disorders because, as Lukoff’s story indicates, many treatment centers do not acknowledge transgender identity (either as part of treat- ment or on the intake forms themselves). There is no doubt transgender people do receive treatment for eating disorders,

VOLUME VI 2015–2016 101 A Paradigm Shift for Trans Funding: Reducing Dis- parities and Centering Human Rights Principles

By Masen Davis, Sarah Gunther, Dave Scamell, and Mauro Cabral

ABSTRACT

Trans movements have grown exponentially in the twenty-first century, yet trans organizing is deeply under resourced. By providing a snapshot of the state of trans organizing and funding, exploring the barriers of funding, and discussing a col- laboration among activists and funders to counter these barriers, we argue that a shift in the funding paradigm must take place in order to sufficiently resource trans movements and advance trans rights. In addition to increasing funding for trans movements, funding decisions should be put in the hands of activists through par- ticipatory grant-making that enables them to decide how to resource their work.

INTRODUCTION As a result of the success of trans ac- tivism, human rights violations based Trans resistance has a long and rich his- on gender identity and expression are tory, and a vibrant present. Many expe- increasingly recognized at national, riences we would today identify as trans regional, and international levels. Yet, have been documented throughout dif- trans-led organizing is significantly un- ferent epochs and cultures.1 Through- der-resourced. out history, people embodying these This article provides a snapshot of the experiences have faced diverse social, current state of trans organizing across religious, legal, and scientific reactions, the globe, paying particular attention including a range of adoration, integra- to the role of funding. By exploring the tion into community life, persecution, barriers restricting access funding and criminalization, and efforts at extermi- the recent collaboration among trans nation. Resistance has resulted in the activists and human rights funders to founding of political movements to counter these barriers, we demonstrate confront institutional violence, affirm that a shift in the funding paradigm self-determination, and expand access must take place in order to sufficiently to human rights.2 resource trans movements and recog- In the twenty-first century, trans nize the rights of trans people across movements have grown exponentially. the world. In addition to increasing

102 LGBTQ POLICY JOURNAL the amount of funding for trans move- standing of the lived experience of trans ments, funding decisions should be put people.⁹ Indeed, as trans organizing has in the hands of trans activists through strengthened over the last decade, in- collaborative, participatory grant-mak- ternational and regional human rights ing that embraces the agency of trans mechanisms have increasingly recog- people to make decisions about how to nized rights violations against trans prioritize and resource their work. people.¹⁰ National institutions have The last decade has brought forth the passed legislation and ruled in favor of emergence of trans-led organizations in protecting trans people’s rights through most countries of the world; regional legal recognition, anti-discrimination, networks articulating collective strate- access to healthcare and employment, gies in Europe, Latin America, Asia and and reparations.¹¹ Trans activists have the Pacific, and Africa; and international played a leading role in bringing about initiatives addressing issues such as vio- these protections by collecting data, tes- lence, depathologization, and HIV. For tifying to support human rights claims example, the European Transgender and submitting written evidence to in- Network (TGEU), founded in 2005, now ternational human rights bodies, and comprises eighty-nine member organi- creating the normative framework to zations from forty-two countries.³ The address their communities’ needs. same year, activists from Latin Amer- However, despite increased visibility ican and some Caribbean countries and recognition, trans people and their created the network Red Lac Trans.⁴ organizations continue to face systemic In 2009, ten activists created the Asia socioeconomic vulnerability. Institu- Pacific Transgender Network (APTN).⁵ tional and social violence against trans In Africa, several national organiza- people is widespread across the globe. tions initiated regional projects, such TGEU’s Transphobia v. Transrespect as Gender Dynamix (founded in 2005) Project documented 1,933 transphobic and Iranti-org (founded in 2012).⁶ In killings in sixty-four countries between 2009, the first trans global organiza- 2008 and 2015.¹² Anti-trans bias affects tions and initiatives—the Global Action black and brown trans people, trans for Trans* Equality (GATE) and the In- indigenous people, trans sex workers, ternational STP (stop trans pathologi- trans people who use drugs, and trans zation) Campaign—were established.⁷ people living with HIV with particular A year later, in 2010, GATE organized brutality.¹³ Trans people who are young, the first trans-led international confer- survivors of domestic abuse, homeless, ence.⁸ These trans-directed regional and migrant, displaced, and living in conflict international formations have played a or disaster zones are also dispropor- critical role in building trans political tionately vulnerable to stigma, discrim- agendas and solidarity across the globe. ination, and violence.¹⁴ These negative Trans activists have played a cen- dynamics are produced and reinforced tral role in identifying, reporting, and through social structures including denouncing human rights violations families, schools, and religious institu- based on gender identity, gender ex- tions. They severely impact trans peo- pression, and bodily diversity, as well ple’s wellbeing and access to education, as demanding an intersectional under- employment, health, and housing.¹⁵ In

VOLUME VI 2015–2016 103 many countries, trans people who want stitutions, and research organizations. to change legal gender markers in their This particular “glass ceiling” not only identity documents must be diagnosed limits trans leadership by reducing op- as mentally disordered and undergo portunities for development and pro- legal and medical procedures such as fessionalization, but also reinforces divorce, sterilization, and/or surgery. inequality and a persistent lack of at- Where available, access to gender-af- tention to trans issues. firming medical procedures is typically The economic challenges facing subject to medico-legal authorization trans people and the marginalization based on pathologizing diagnoses, of trans activism and leadership within and is frequently restricted by lack of LGBT organizations directly impacts health coverage.¹⁶ Further, the milita- the funding, capacity, and sustainabil- rized prison industrial complex makes ity of transgender organizations. With trans people a constant and vulnera- many trans people living at or below ble target for surveillance, harassment, poverty levels, and few trans people in and detention. For example, trans peo- the field of philanthropy or in formal ple, especially black trans women, are leadership positions in LGBT organi- disproportionally represented among zations, trans-led groups tend to be at incarcerated prison populations in an economic disadvantage compared to countries like the United States.¹⁷ gay and lesbian counterparts. Compounding this, trans move- ments face a number of challenges UNDERSTANDING FUNDING stemming from their positioning within DISPARITIES: THE STATE OF the LGBT umbrella. Trans issues and TRANS ORGANIZING leadership are often eclipsed by gay and lesbian issues and organizations; when In order to better understand the state aggregated as “LGBT,” trans issues of trans organizing and support of trans tend to occupy a relegated position.¹⁸ movement building, in 2013 GATE and Naturalized as a single and homoge- the American Jewish World Service neous population, power imbalances (AJWS) conducted a survey of trans within the LGBT community tend to organizations’ access to funding. The remain invisible and those occupying survey of 340 self-identified trans and hegemonic positions are recognized as intersex groups paints a picture of the representatives of the imaginary collec- recent explosion of activism described tive. In many cases, LGBT aggregation above.²⁰ The majority of trans groups has negatively impacted trans activists’ surveyed were less than ten years old, access to resources. This has been par- and almost a third were founded in the ticularly true in the field of HIV, where three years prior to the survey.²¹ While the relegation of trans women into the many of these groups build on long cul- men who have sex with men (MSM) tural histories of trans communities, as population has rendered invisible key well as experiences of participation and challenges facing trans women im- leadership in other social justice move- pacted by HIV and AIDS.¹⁹ In addition, ments, this rapid increase in the number trans people occupy few seats of power of formal trans-led groups represents in governmental agencies, funding in- a new formation of trans organizing.

104 LGBTQ POLICY JOURNAL There are now trans-led groups in every likely to be able to make decisions when region of the world, each with a distinct they work in autonomous trans groups, ecosystem of trans organizing and a rap- versus those that are in programs be- idly evolving landscape with new groups longing to another organization.27 forming all the time.²² Strikingly, nearly The vast majority of trans groups half (45 percent) of the trans groups surveyed in 2013 worked on two main that responded to the survey are not issues: changing social attitudes about independent organizations, but rather trans people and doing legal and pol- programs of larger organizations with icy advocacy to promote trans rights.²⁸ broader mandates beyond trans work.²³ These priorities line up well with those This has significant implications on the of human rights funders. One major ability of trans activists to make au- area of disconnect, however, remains tonomous decisions about their work, trans groups’ desire to expand their particularly about how organizational work to provide direct services—in- money is spent. Only a quarter (26 per- cluding health care—to community cent) of these groups make most or all members. For many trans groups, par- of the financial decisions about their ticularly those working in poor re- work.²⁴ Close to a third (32 percent) source areas, it does not make sense to share financial decision-making with draw a strict boundary between com- the broader organization, and a full 42 munity organizing and service provi- percent report that they have little or no sion. In order to build a strong base of say in financial decisions.²⁵ This means constituents and effective movements, that a large number of trans activists are connecting community members with constrained in using knowledge of their access to services, including psychoso- communities’ needs and priorities to cial support and health care, is critical. make decisions about how the funding Unfortunately, human rights and LGBT aimed at benefiting their communities funders supporting trans work tend not can be used. to fund social services.²⁹ In particular, Trans activists may sometimes find it trans groups find it next to impossible strategic to work within larger organiza- to find funding for gender-affirming tions in order to access support, security, health care, which is a priority for their or resources. Indeed, trans groups that members, and crucial to building stable are programs of larger organizations are organizations and sustainable activism. more than three times as likely to have Support for livelihoods, employment, paid staff as groups that are autono- and economic justice is another un- mous.²⁶ However, it is clear that being der-funded but critical area.³⁰ part of a larger organization is a barrier State of Trans Funding Globally for trans activists to set their own pri- orities. This has particular weight for Globally, trans groups operated on trans groups in the Global South, which scarce resources in 2013. More than half are the most likely to be programs of of groups had an annual budget of less other organizations and not in control than US $10,000; nearly 20 percent had of making their own financial decisions. no budget at all.³¹ There are regional It also has significant implications for differences, though; for example, trans trans women, who are 2.6 times more organizations in Central America and

VOLUME VI 2015–2016 105 the Caribbean were most likely to report priorities do not match groups’ needs, having no budgets (40 percent).³² with some trans groups and other In 2013, trans-led groups had a sig- groups ineligible for funding because nificantly worse financial picture than of their location or constituency.³⁶ This non-trans-led groups, with a median an- is a particular challenge for groups in nual budget of US $5,000 to $10,000.³³ high-income countries, despite the real- Contrastly, groups that were not led ity that trans people in these areas may by trans people had a median annual face similar life experiences as those budget of $20,000 to $50,000 for their in poorer countries. Tans-led groups trans work. The same disparities exist headed by men also reported problems for staffing and financial stability. While accessing funding, most likely because 84 percent of non-trans-led groups had they are not considered a key popula- paid staff, only 44 percent of trans-led tion affected by HIV-focused funders.³⁷ groups did, and while 47 percent of non Institutional donors face both stra- self-led groups had no savings, a full 72 tegic and administrative barriers to percent of trans-led groups had none.³⁴ funding nascent and emerging groups, Trans-led groups cannot do the work particularly across borders. Strategi- needed to address the human rights cally, institutional donors may not be violations their communities face with willing or able to take a risk on funding such limited capacity. an issue or movement that has a rela- Groups doing trans work are severely tively smaller track record than more under-funded across the board, with established and better-funded issues or only half of surveyed groups receiv- movements. Administratively, it is hard ing external funding. Again, trans-led for private foundations to make grants groups had significantly less access to to small international groups, since they funding. Of all types of funding, these often cannot meet donor compliance disparities were largest for foundation thresholds. While there is a global eco- funding, with only 27 percent of trans- system of public foundations that exist led groups receiving foundation grants, to resource grassroots groups, demand as compared to 41 percent of non trans- from groups far surpasses the funding led groups.³⁵ supply. For instance, in 2013, total global Trans groups also face significant foundation funding on trans* issues barriers to access the limited funding was approximately $8.8 million, which available to them. LGBT funding regu- is vastly insufficient to support the hun- larly goes to LGBT organizations, which dreds of organizations advancing trans* often have few or no trans leaders and rights across all regions of the world.³⁸ limited commitment to prioritizing Further, there are very few trans peo- trans community needs. Groups do not ple working in philanthropy. This, no know where to look for funding or how doubt, has an impact on the relative pri- to contact donors, and application pro- ority accorded to trans issues, compared cedures are often long, complicated, and to others, as well as some of the mis- only in English. Trans groups also may match between donor and activist prior- not have the capacity to manage grants ities. Lastly, donors may not understand once they are received, deterring them trans issues or see the connections to from applying in the first place. Donor their funding portfolios, even if they are

106 LGBTQ POLICY JOURNAL clearly related to violations facing trans issues.⁴³ This is likely a reflection of the communities (e.g. health or violence). ability of smaller public foundations to A parallel survey of thirty-eight make grants to smaller trans-led groups, funders in 2013 revealed several trends and their more frequently held political about funding for trans groups, includ- commitments to supporting self-led ing significant funding gaps for groups work. Overall, funders showed interest with trans leadership.³⁹ Trans funding in learning more about opportunities to appears to be growing, with 71 percent support trans movements, presenting of donors having added at least one an opportunity for funders and activists new trans group to their portfolio and to collaborate to develop strategies to one-third having added three to four address the barriers. new groups in 2013.⁴⁰ Yet, a quarter of Our analysis of this data suggests the respondent donors do not track infor- current funding paradigm must shift mation about whether the organiza- in order to sufficiently resource trans tions they fund are led by trans people. movements to advance trans rights. Of those who do track this data, nearly First, it is critical that donors provide two-thirds of donors said that all (35 support to trans-led groups, rather than percent) or most (38 percent) of the assuming LGBT groups will reflect the groups funded were led by trans peo- needs and priorities of trans commu- ple.⁴¹ However, within the donor com- nities. The extent to which a group’s munity, there is not a shared definition leadership reflects the community is a of what it means to be trans-led, making crucial indicator of whether the group is it challenging to evaluate progress and building the power of trans people and to hold funders accountable. enabling them to set their own agen- Unfortunately, the provision of gen- das. This matters because autonomous eral support and multi-year grants, two movements are a key driving force in types of funding that enable sustained making progressive social change and investment in trans organizations, re- institutionalizing norms for interna- mains limited. While half of donors tional human rights at national levels.⁴⁴ made at least 50 percent of their grants We believe that funding is most effective as unrestricted or general support, more when it aligns with the priorities and vi- than a quarter of donors give no general sions of the communities it aims to sup- support grants at all. More than half of port. In order to truly realize the rights donors provide no multi-year grants to of trans people, money must be put di- trans groups, with only 19 percent giv- rectly in the hands of trans activists. ing most or all multi-year grants to trans In order to achieve these goals, do- groups.⁴² nors must make their funding accessible Interestingly, the donors who gave to trans-led groups, including those pri- the fewest resources to trans work oritizing the leadership of trans people (less than $50,000) were more likely who are further marginalized based on to support autonomous trans groups, race, class, and other axes of oppression. while donors with the most resources Large donors who have structural con- ($500,000 or more trans-related grants) straints in making funding available to were more likely to make grants to trans groups, many of which are small LGBT organizations to work on trans and lack the administrative capacity to

VOLUME VI 2015–2016 107 receive large grants, can partner with in the success of human rights move- public foundations and other interme- ments. Yet, tension often exists be- diaries who can more easily support tween the commitment of funders to grassroots trans groups. Funders who human rights principles and the way are able to more flexibly donate should the field of grant-making works. Deci- further simplify and streamline their sions about funding priorities (such as funding procedures, provide technical geographical and thematic focus), which assistance to applicants, and give multi- determine the movements and organi- year general operating support. zations that will have the opportunity to Finally, donors should apply the access grants, are typically proposed by a human rights principles of participation funder’s program staff, and approved by and self-determination to their funding a board or senior management. practices. This requires creating oppor- There are multiple factors that influ- tunities for trans activists to inform do- ence grant-making decisions. Donors nors and set funding priorities designed seek to have the biggest impact possible to improve the lives of trans commu- with their funding, which means field nities. This can include a range of op- evidence and input is central. However, tions, such as mapping landscapes of human rights movements rarely play an trans organizing to understand move- active, influencing role in the decisions ment dynamics, engaging with activists of funders. Nor do funding institutions to inform grant-making strategies, and always publish information about their handing over philanthropic power to grant-making strategies and portfolios, participatory funding mechanisms in for reasons ranging from grantee secu- which trans activists make decisions. rity concerns to a desire to keep strat- Donors have an exciting opportunity egies private.⁴⁶ In addition, while they to partner with trans activists to make may feel accountable to the fields that their funding more responsive, and we they fund, foundation staff members are believe, more effective. ultimately accountable only to their or- ganizational hierarchies. A STRATEGY FOR CHANGE: Since 2012, trans activists and COLLABORATION BETWEEN funders have collaborated to reduce the FUNDERS AND ACTIVISTS gap between the funding needed to ad- vance trans rights and the insufficient The principles of participation, trans- resources available. This collaboration parency, and accountability are fun- has sought to challenge traditional damental to the international human power dynamics between funders and rights framework. Numerous human activists by striving for greater participa- rights treaties and documents establish tion of trans activists in decision-mak- the right of all persons to participate in ing about funding for trans rights, decision-making processes that impact increased transparency among funders their ability to fully realize their human committed to trans issues, and greater rights.⁴⁵ accountability of funders and activists Human rights funders (including to the movements they support. private and public foundations, as well The field of trans grant-making is as governments) play an important role only about a decade old.⁴⁷ In order to in-

108 LGBTQ POLICY JOURNAL form this nascent field and make the case steps to challenge power between for increased funding on trans issues, funders and activists, and facilitate ef- GATE and AJWS worked together in fective participation of trans activists 2013 to produce the “State of Trans and in the meeting. Trans activists, rep- Intersex Organizing” report described resenting the majority of organizing above. At the same time, the Open So- committee members, led in creating an ciety Foundations, Wellspring Advisors, open call for activists to participate and and GATE began discussing the need for designing the meeting agenda.⁴⁹ Given greater coordination and collaboration that most of the activists selected to par- between activists and funders. ticipate had zero or limited experience These discussions led to the organiz- meeting with funders, each participant ing of the first global dialogue among had the opportunity to access coaching funders and activists working on gen- from a professional communications der diversity. In 2013, trans and inter- consultant prior to the meeting. Ac- sex activists and funders met in Berlin tivists also arrived early in Berlin for a for a meeting called Advancing Trans* pre-conference strategy meeting. While Movements Worldwide. The objectives these steps required labor-intensive were to enable funders to learn from meeting preparation, they resulted in a activists about the human rights issues more open and dynamic learning space, facing trans and intersex communities with diverse, well-informed, and moti- across the world (activists came from vated activists playing a central role in eleven countries and five continents); defining the agenda and ensuring donor allow activists and funders to identify participants left with a greater under- and disable barriers blocking access standing of the needs and priorities of and resources to address these issues; trans and intersex movements.⁵⁰ and, most importantly, strategize about By the end of the meeting, trans ac- needed steps to increase the amount tivists and funders had identified rec- and the effectiveness of future funding ommendations to increase and improve to trans and intersex movements.⁴⁸ funding to trans movements, including The meeting was a collaboration establishing mechanisms for ongoing between funders and activists for a few learning and collaboration, conducting reasons. First, trans movements have a trans movement and issue mapping historically been denied the ability to in order to better inform donor coordi- effectively participate in funding dis- nation and investment, and exploring cussions that impact them. Second, the possibility of a global fund for trans the significant under-funding of trans activists.⁵¹ Just as importantly, Advanc- movements and the severity of the ing Trans* Movements Worldwide es- human rights violations they sought tablished interpersonal relationships to address accentuated the power im- between funders and activists, and so- balance existing between funders and lidified the principle that efforts to -ex grantees. Lastly, activists and funders pand the field of trans funding should held complementary expertise, and be achieved through funder and activ- both needed to advance a conversation ist collaboration and be based on the on resourcing trans activism. needs and priorities articulated by trans The organizers took a number of movements.

VOLUME VI 2015–2016 109 Activists and funders meet again in ent and accountable to those commu- Istanbul in 2015 to explore the feasibil- nities, and prioritize the right of trans ity of establishing an international fund people to self-determine the best ways dedicated to trans issues.⁵² Participants to address the human rights violations had a difficult task. The success of any they face.⁵⁴ In a few short years, activists potential fund would require it to be and funders have not only forged prin- seen as legitimate and beneficial by di- ciples for a field of grant-making based verse trans movements across the globe upon participation, transparency, and and to have the support from a group of accountability, but they’ve also com- funders operating within different deci- mitted to the establishment of a funding sion-making structures. Unlike in Ber- vehicle through which these principles lin, where the discussion included broad can be exercised. recommendations for the field, the con- versation in Istanbul was focused on a CHANGING THE PARADIGM potential initiative to which funders in the room would be asked to contribute. It will take several years to know if the Funder and activist participants at creation of a collaborative fund will the Istanbul convening reached a con- successfully reduce funding barriers sensus that “the development of an in- for trans groups, increase access to re- ternational trans fund is both possible sources, and strengthen trans move- and recommended” and, more impor- ments worldwide. There is, nevertheless, tantly, that, guided by trans leadership growing evidence to suggest that partic- and decision-making, the two groups ipatory grant-making can play a trans- would work together to create the formative role in civil society, especially fund.⁵³ To ensure that trans activists among emerging and marginalized would continue to lead in establishing communities. A 2014 Lafayette Practice the fund’s priorities and approach, the review of eight international participa- committee formed to develop the fund tory grant-making funds suggests that was chosen to be at least 80 percent the transformative potential of partici- trans-identified and 80 percent activist. patory grant-making transcends dollars The committee has since commenced alone. While the $3.6 million annually work to create the fund, with a plan to invested by these funds has been im- have an activist-led international trans portant to the historically marginalized fund in place in 2016, providing re- groups they support—including sex sources for trans activism by 2017. workers, HIV-positive young people, The values and principles agreed and disability rights activists—the La- upon by funders and activists for the fayette Practice found the benefits of international trans fund reflect the collaborative funds include flexibility rights-based outcomes that can occur in funding, access to capacity building when collaboration between donors for activists, and increased impact over- and movements is prioritized. The new all.⁵⁵ In addition to giving grants, “[t]he activist-led fund will be built around funds see themselves as contributing to trans leadership and decision-making. the creation of cohorts of well informed It will be flexible and responsive to the leaders that leave panel participation needs of trans communities, transpar- better networked, more fully informed,

110 LGBTQ POLICY JOURNAL and often, with a better understanding trans activism and, in time, increasing of the grant-making process and partic- overall resources available to the field. ularities of how funding decisions are It is critical that a new fund not simply made.”⁵⁶ reallocate resources, but also bring new The importance of these non-fi- resources into the field, expanding the nancial impacts can be seen in trans pool of available funding for all groups. activists’ initial recommendations for Trans communities around the globe the international fund’s goals, which face systemic challenges, from poverty include increasing the resources avail- to pathologization and violence. We able to trans-led organizations, provid- have seen unprecedented activism im- ing capacity building support (such as prove the rights, wellness, and the safety skills building, coaching, and technical of trans people. It is critical that the re- support), creating a mechanism to sup- sources available to trans organizations port an ecosystem of trans groups with begin to match the scale of tasks before a focus on small and emerging groups, them. Changing the dynamic of fund- and becoming a thought leader on ing represents one critical step forward trans-related investments within the in building and sustaining strong trans philanthropic sector.⁵⁷ movements for the work ahead. The addition of a trans activist-led fund to the existing philanthropic land- Masen Davis is a transgender advocate scape could reduce many of the barriers who has dedicated his life to the struggle identified in the 2013 GATE and AJWS for LGBT equality. He served as executive report. For example, having a dedicated director of the Transgender Law Center trans fund could ensure a baseline of from 2007 until 2015, which has had a funding for autonomous trans orga- tremendous impact on the rights and well- nizations, allowing trans-led groups being of transgender people in the US. His to flourish without having to compete advocacy was critical to the elimination with LGBT groups. Even if the fund of discriminatory insurance exclusions in created relatively small grants, it would California, creating a pathway for trans- provide a known and trusted entry point gender Americans to access transition-re- to help trans groups build relationships lated care. with donors while learning the basics Davis was also an integral part of the co- of grant-seeking. Grant application and alition that helped pass California’s School reporting guidelines could be stream- Success and Opportunity Act, which en- lined, simplified, and accessible in mul- sures transgender students have access to tiple languages, with support available facilities and activities that match their for first-time grant seekers. Trans ac- gender identities, and he led the cam- tivists, avoiding the mismatch between paign to defend the new law against an activists' needs and funders’ priorities, anti-LGBT referendum effort. A social would set the fund’s grant-making strat- worker by training, his writing has been egy. Finally, the process of developing a published in various books and journals, collaborative fund, including securing including Sexual Orientation and Gender commitments from larger foundations Expression in Social Work Practice and and bilateral funders, holds the promise New Directors in Student Services. Masen of introducing new and larger donors to received his master of social welfare from

VOLUME VI 2015–2016 111 UCLA and his bachelor of arts from North- the sexual health and rights department western University. at American Jewish World Service (AJWS), Currently, Davis serves as interim co-di- which focuses on supporting grassroots or- rector for global action for Trans* Equality ganizations working to advance the sexual and consults with non-governmental or- health and rights of sex workers, LGBTQI ganizations and foundations on a range of people, and women and adolescent girls in transgender issues. He is a 2015-16 Regents’ Africa, Asia, and Latin America. Lecturer at UCLA and an advisory board Prior to joining AJWS, Scamell was a member of the John F. Kennedy School program officer for the Open Society Pub- of Government at Harvard University’s lic Health Program’s Sexual Health and LGBTQ Policy Journal. Rights Project. In his four years at Open Society Foundations (OSF), he supported Sarah Gunther is the director of pro- civil society to advance the health and grams at the Astraea Lesbian Foundation rights of transgender and sex workers for Justice, where she leads grant-making, communities across the world. Scamell capacity-building and leadership develop- led OSF’s grant-making and operational ment, philanthropic advocacy, and media portfolios on access to justice for sex work- and communications programs in support ers, sex work decriminalization, legal gen- of worldwide LGBTQI activism for so- der recognition, access to healthcare for cial, racial, economic, and gender justice. transgender persons, and fund leveraging The grant-making program she oversees to increase resources for the transgender supports lesbian, trans*, and intersex-led movement. grassroots activism in over fifty-five coun- Scamell sits on the board of directors for tries. Global Actions for Trans* Equality and the Gunther joined Astraea in 2013 after executive committee of the Global Philan- serving as the director of Africa programs thropy Project, where he also co-chairs the at American Jewish World Service (AJWS), Trans Working Group. He holds a master’s where she oversaw grant-making to grass- degree in international human rights law roots organizations pursuing sexual rights, from the University of Essex and a bache- natural resource rights, and civil and polit- lor’s degree in political science and inter- ical rights in Africa. She also played a key national relations from the University of role in developing AJWS’s global sexual New South Wales. rights strategies with a focus on LGBTQI rights, trans justice, and sex worker rights. Mauro Cabral is an activist and writer Prior to joining AJWS, Gunther man- from Argentina. He serves as the director aged livelihood programs in East and of advocacy and programs at Global Ac- West Africa at Trickle Up and worked in tion for Trans* Equality (GATE), where he Uganda with grassroots activist groups. leads its initiative on the reform of the In- She holds a BA in feminist, gender, and ternational Classification of Diseases. He sexuality studies and African American also collaborates as senior advisor to the studies from Wesleyan University and is intersex fund at Astraea. Prior to co-found- pursuing an MA in human rights studies ing GATE, Cabral was part of Mulabi – Es- at Columbia University. pacio Lationoamericano de Sexualidades y Derechos, where he directed its projects on Dave Scamell is the associate director of institutional violence against trans peo-

112 LGBTQ POLICY JOURNAL ple and intersexuality and human rights. n.d. 8. “GATE Global Advocates for Trans* From 2005 to 2007 Cabral worked as the Equality,” HIVOS, 2010. coordinator of the Latin American Trans 9. Silvan Agius et al., Human Rights and and Intersex Program for the International Gender Identity: Best Practice Catalogue Gay and Lesbian Human Rights Conven- (Brussels, Belgium: ILGA Europe and tion. TGEU, December 2011). At this moment he serves as a board 10. “Sexual Health, Human Rights and the member at Akahatá, and participates in Law,” World Heath Organization, 2014. numerous consultative boards, including 11. Landmark examples include “Argentina’s those of the LGTB program at Human Gender Identity and Health Comprehen- sive Care for Transgender People Act of Rights Watch, Dignity for All, and the In- 2012,” Global Action for Trans Equality, 8 ternational Day Against Homophobia and May 2012; and Malta’s “Gender Identity, Transphobia. He is also a member of the Gender Expression and Sex Characteris- International Reference Group on Trans tics Act of 2015,” Gender Identity, Gender Issues and HIV at the Men Who Have Sex Expression and Sex Characteristics, 14 April with Men Global Forum, and of the AIS 2015. Working Group on Key Affected Popula- 12. “Transgender Day of Remembrance tions. 2015 – Trans* Murder Monitoring Update,” In 2006, Cabral participated in the Trans* Respect Versus Transphobia Wold- production of the Yogyakarta Principles wide, 9 November 2015. 13. JM Sevelius, “Gender Affirmation: A on the Application of the International Framework for Conceptualizing Risk Human Rights Law to Sexual Orientation Behavior among Transgender Women and Gender Identity. In 2009, he edited the of Color,” Sex Roles Vol. 68 (New York: book Interdicciones. Escrituras de la Inter- Springer, 2013): 675-689; Jaime M. Grant sexualidad en Castellano.Cabral received et al., Injustice at Every Turn: A Report of his .icentiate degree in history from the the National Transgender Discrimination University of Cordoba, and from 2001 to Survey (Washington, DC: National Center 2009 he lectured on bodily and biotechno- for Transgender Equality and National Gay logical issues. In 2015 he received the Bob and Lesbian Task Force, 2011). 14. Grossman, Arnold, and Anthony Hepple Equality Award. D’Augelli, “: invisible and Vulnerable,” Journal of Homosexuality ENDNOTES Vol. 51, No. 1 (Abingdon, England: Taylor 1. Susan Stryker, (San and Francis, 2006): 111-228, doi; “Technical Francisco: Seal Press, 2008). Brief HIV and Young Transgender People,” 2. Dean Spade, Normal Life: Administrative World Health Organization, 2016; “Dis- Violence, Critical Trans* Politics, and the criminatory Laws and Practices and Acts Limits of Law (New York: South End Press, of Violence Against Individuals Based on 2011). Their Sexual Orientation and Gender Iden- 3. “About Us,” Transgender Europe, n.d. tity,”United Nations High Commissioner 4. “Misión, Visión, Objetivos,” Redlactrans, for Human Rights, 2011. n.d. 15. “The State Decides Who I Am: Lack 5. “History,” Asia Pacific Transgender Net- of Recognition for Transgender People,” work, n.d. Amnesty International, 2014. 6. “About Us,” Gender Dynamix, n.d.; 16. “Controlling Bodies, Denying Identities: “About Iranti-org,” Iranti-org, n.d. Human Rights Violations Against Trans* 7. “About Us,” Stop Trans* Pathologization, People in the Netherlands,” Human Rights

VOLUME VI 2015–2016 113 Watch, 2011; uHumdffCurrah, Paisley, and survey data proved challenging to assess, Lisa Jean Moore, “’We Won’t Know Who whether the respondents were self-led, and You Are’: Contesting Sex Designations in financial decision-making was used as a New York City Birth Certificates,” Hypatia: proxy in the analysis. A Journal of Feminist Philosophy Vol. 24, 21. Eisfeld, Justus, Sarah Gunther, and Dav- No. 3 (New York: 2009): 113-135. ey Shlasko The State of Trans* and Intersex 17. Stanley Eric A., and Nat Smith, eds. Organizing: A Case for Increased Ssupport Captive Genders: Trans Embodiment and for Growing But Under-Funded Move- the Prison Industrial Complex (Oakland, ments for Human Rights (New York: Global California: AK Press, 2015). Action for Trans* Equality and American 18. Dean Spade, Normal Life: Administra- Jewish World Service, 2013): 11. tive Violence, Critical Trans* Politics, and 22. Ibid. the Limits of Law (Brooklyn, New York: 23. Ibid, 14. South End Press, 2011); Shannon Price 24. Ibid. Minter, “Do Transsexuals Dream of Gay 25. Ibid, 15. Rights? Getting Real About Transgender 26. Frazer, Somjen, and Erin Howe, Grow- Inclusion in the Gay Rights Movement” ing Trans* Funding and Strategy: A report Transgender Rights, ed. Paisley Currah et from the field in 2013 (New York: Strength al. (Minneapolis: University of Minnesota in Numbers Consulting Group for Arcus Press, 2006): 141-171; Viviane K. Namaste, Foundation and Open Society Foundations, Invisible Lives: The Erasure of Transsexual 2015): 22. and Transgendered People (Chicago: Uni- 27. Ibid, 19. versity of Chicago Press, 2000). 28. Eisfeld, Gunther, and Shlasko, The State 19. Sausa, L., Jae Sevelius et al., “Policy of Trans* and Intersex Organizing, 22. Recommendations for Inclusive Data Col- 29. Frazer and Howe, Growing Trans* lection of Trans* People in HIV Prevention, Funding and Strategy, 40. Care & Services,” Center of Excellence 30. Frazer and Howe, Growing Trans* for Transgender Health and University of Funding and Strategy; and Eisfeld, Gunther, California, 2009. and Shlasko, The State of Trans* and Inter- 20. While the study was originally designed sex Organizing. to reach trans* groups, the authors decided 31. Eisfeld, Gunther, and Shlasko, The State to include intersex groups in order to of Trans* and Intersex Organizing, 15. collect otherwise nonexistent data on their 32. Frazer and Howe, Growing Trans* state of organizing and access to funding. Funding and Strategy, 13. However, only ten intersex-led groups 33. As a proxy for trans* leadership, which responded. When we refer to the survey is challenging to assess in an online survey, data in this article, we will either refer to the GATE-AJWS survey used financial data on trans* groups (which includes decision-making as a proxy indicator of only the trans* respondents), or data on power, leadership, and authority in a group. self-led groups (which includes both trans* Groups that indicated most financial deci- and intersex respondents); While it was sions are made by trans* people were coded groundbreaking as the first global survey of as “self-led.” trans organizations, the survey had several 34. Eisfeld, Gunther, and Shlasko, The State methodological limitations. First, it was of Trans* and Intersex Organizing, 16. distributed online in English, Spanish, and 35. Ibid, 18. French, so groups lacking Internet access 36. Ibid, 22. and/or proficiency in those languages were 37. Ibid. unable to access it. Second, it was distrib- 38. Frazer and Howe, Growing Trans* uted through GATE’s and AJWS’s networks, Funding and Strategy, 35. as well as relevant list servers. Third, the 39. Of the thirty-eight donor respondents

114 LGBTQ POLICY JOURNAL reached with the online or phone survey, been funding in this field prior to 2008, twenty-three were public foundations (in- with the Astraea Lesbian Foundation for cluding elven women’s funds), twelve were Justice having provided the first trans grant private foundations, two were bilateral do- in 1994. Source: Global Action for Trans* nors, and one was a multilateral agency. In Equality and Open Society Foundations, addition, 95 percent of the donors reported Advancing Trans* Movements Worldwide: they funded trans* groups in 2013. Lessons From A Dialogue Between Funders 40. Frazer and Howe, Growing Trans* & Activists Working on Gender Diversity Funding and Strategy, 39. (New York: GATE and OSF, 2014). 41. Frazer and Howe, Growing Trans* 48. Global Action for Trans* Equality and Funding and Strategy, 37. Open Society Foundations, Advancing 42. Frazer and Howe, Growing Trans* Trans* Movements Worldwide. Funding and Strategy, 38; The reluctance 49. The call for presenters at the meeting of foundations to give general support and was widely distributed to listservs, websites, multi-year grants is a sector-wide challenge, and social media in English, French, Rus- not unique to trans* funding. According sian, and Spanish; Supra note 2, 24. to the National Committee for Responsive 50. Supra note 2, 24. Philanthropy, the average foundation share 51. Global Action for Trans* Equality and of giving coded as general support is 21 Open Society Foundations, Advancing percent; Jagpal, Niki, and Kevin Laskowski. Trans* Movements Worldwide, 1. “The State of General Operating Support,” 52. As a result of a February 2015 meeting May 2013; Even more dismal, the average with intersex activists who attended the foundation share of multi-year grants is 4 2013 Berlin convening, an early decision percent. Jagpal, Niki, and Kevin Laskowski, was made to limit the scope of a fund to “The State of Multi-Year Funding,” The trans* issues. The intersex representatives Philanthropic Landscape, May 2013. felt it was important to support separate 43. Frazer and Howe, Growing Trans* intersex-specific funding initiatives. Funding and Strategy, 36. 53. Masen Davis, International Trans* Con- 44. Htun, Mala, and S. Laurel Weldon, “The vening: A Meeting for Funders and Activists Civic Origins of Progressive Policy Change: Working on Gender Diversity, Istanbul, Combating Violence Against Women in May 19-22, 2015 (New York: Global Action Global Perspective, 1975-2005” The Amer- for Trans Equality, 2016): 6. ican Political Science Review Vol. 106, No. 54. Ibid, 7. 3 (Cambridge: Cambridge University Press, 55. The Lafayette Practice, Who Decides: 2012): 548-569. How Participatory Grantmaking Benefits 45. See, for example, Article 25 of the In- Donors, Communities, and Movements ternational Covenant on Civil and Political (Paris: The Lafayette Practice, 2014). Rights (ICCPR) and the World 56. The Lafayette Practice, Who Decides, 11. Conference on Human Rights Declaration 57. Davis, International Trans* Convening, and Programme of Action. 8. 46. Several philanthropic sector initiatives are working to promote greater foundation transparency. See “Talking About Trans- parency,” Glasspockets, a project of the Foundation Center, n.d.; “Opening Up: Demystifying Funder Transparency,” Grant Craft, 2014. 47. A 2013 survey of nineteen donors currently or formerly interested in funding on trans* issues found that only half had

VOLUME VI 2015–2016 115 ABOUT THE LGBTQ POLICY JOURNAL The LGBTQ Policy Journal at the John F. Kennedy School of Government at Harvard University is a student-run, nonpartisan review dedicated to publishing interdisci- plinary work on policymaking and politics impacting lesbian, gay, bisexual, trans- gender, and queer (LGBTQ) communities and individuals. The LGBTQ Policy Journal published its first edition in the spring of 2011, and it is the only student-produced LGBTQ journal in the nation. At the journal, we strive to improve the quality of public policies affecting LGBTQ communities by furthering reflection and debate on the complex economic, political, and social consequences of public policy regimes for LGBTQ persons. We celebrate diversity, embrace controversy, and promote equality for all. Our Mission: To inspire thoughtful debate, challenge commonly held beliefs, and move the conversation forward on LGBTQ rights and equality. WRITE FOR THE LGBTQ POLICY JOURNAL BLOG The LGBTQ Policy Journal staff welcomes contributions from LGBTQ activists, ac- ademics, and allies to submit content to be included on our blog (www.hkslgbtq. com). Submissions may take the form of research, reviews, interviews, or dialogues; recounting or retelling of advocacy surrounding policy change; and/or art and per- sonal expression. How to Submit a Proposal Please submit your full first draft with all citations to [email protected]. In the email, please include the following information: • Full name, affiliated organization (if selected, this will be included on our web- site with your piece) • Links to any previously published materials Submission Requirements Authors will be notified immediately upon receipt of a submission, and contacted again within two weeks if we are able to continue forward with your proposal. If your proposal is accepted, an editorial board member will work with you to refine the submission to meet our standards for publication. Please note our publication parameters: • Length of 500 to 1,000 words, but we can be flexible • Authors must disclose if the content has been published in the same form else- where • Authors are required to cooperate with editing and fact checking and to com- ply with journal standards Selection Criteria The LGBTQ Policy Journal will select blog submissions for publication based on the following criteria: • Relevance of topic to LGBTQ policy issues and timeliness with current policy debates • Originality of ideas and depth of the proposed research • Sophistication and style of argument(s) • Contribution to scholarship and policy-making on LGBTQ issues the shorenstein center analyzes the power of media, in all its forms, and its impact on public policy and politics. Through research, teaching, high‑profile events, and engagement, the Center plays a leading role in the discussion about media and politics in the 21st century. Digital technology pushes the impact of the center far beyond Cambridge.

teaching. Faculty members teach and conduct research on political communication, public opinion, new media, and the intersection of press, politics and policy. students. The fellowships. center offers Kennedy Outstanding journalists School students access to and scholars spend a internships, positions as semester at the center research assistants, and researching and writing a scholarships. paper, and participating in Harvard activities.

public programs. Weekly events with distinguished scholars and practitioners attract students, faculty, and members of the community. goldsmith awards research. Studies in political include research on journalism. The and presidential Goldsmith Awards include campaigns, press a prize for investigative coverage of the economy, reporting, two book prizes, and the influence of and a career award. conservative media. shorensteincenter.org | @ShorensteinCtr MALCOLM WIENER CENTER FOR SOCIAL POLICY

The Malcolm Wiener Center is a vibrant intellectual community of faculty, masters and PhD students, researchers, and administrative staff striving to improve public policy and practice in the areas of health care, human services, criminal justice, inequality, education, and labor.

The work of the center draws on the worlds of scholarship, policy, and practice to address pressing questions by: l carrying out research on important policy issues affecting the lives of those most vulnerable and needy l providing professional education for those in the world of practice l educating the next generation of academics and policy scholars l ensuring that research and education are closely tied to and draw from politics and practice in the field l developing working partnerships with the broader policy community For more than two decades the Malcolm Wiener Center has been an influential voice in domestic policy through faculty work on community policing, welfare reform, youth violence, education, urban poverty, youth and the low-wage labor market, American Indian economic and social development, and medical error rates. Our research portfolio is both broad and deep, spanning many academic disciplines, encompassing traditional research as well as executive sessions, case-based research and action research, and employing a variety of research methodologies. It is inspired by our focus on bettering the lives of our fellow citizens, particularly those who are most vulnerable and needy.

WEB SITE: www.hks.harvard.edu/centers/wiener MALCOLM WIENER CENTER FOR SOCIAL POLICY

The Malcolm Wiener Center is a vibrant intellectual community of faculty, masters and PhD students, researchers, and administrative staff striving to improve public policy and practice in the areas of health care, human services, criminal justice, inequality, education, and labor.

The work of the center draws on the worlds of scholarship, policy, and practice to address pressing questions by: l carrying out research on important policy issues affecting the lives of those most vulnerable and needy l providing professional education for those in the world of practice l educating the next generation of academics and policy scholars l ensuring that research and education are closely tied to and draw from politics and practice in the field l developing working partnerships with the broader policy community For more than two decades the Malcolm Wiener Center has been an influential voice in domestic policy through faculty work on community policing, welfare reform, youth violence, education, urban poverty, youth and the low-wage labor market, American Indian economic and social development, and medical error rates. Our research portfolio is both broad and deep, spanning many academic disciplines, encompassing traditional research as well as executive sessions, case-based research and action research, and employing a variety of research methodologies. It is inspired by our focus on bettering the lives of our fellow citizens, particularly those who are most vulnerable and needy.

WEB SITE: www.hks.harvard.edu/centers/wiener